FILED

COURT OF APPEALS
DIVISION II
2013 M AR 12 AM 9: 51
STATE OF WASHINGTON
BY
DEPUTY
No. 43076-2 -II
COURT OF APPEALS
DIVISION II
OFTHESTATEOF WASHINGTON
KITSAP COUNTY, a political subdivisionofthe State ofWashington,
Respondent,
v.
KITSAP RIFLEANDREVOLVER CLUB, a not - for - profit corporation
registered inthe State ofWashington, andJOHN DOES andJANEDOES
I -XX, inclusive, Appellants,
and
IN THEM ATTER OFNUISANCEANDUNPERM ITTED
CONDITIONS LOCATEDAT
One 72 -acre parcel identifiedby KitsapCounty Tax Parcel IDNo.
362501 -4- 002 -1006 with street address 4900 Seabeck Highway NW,
BremertonWashington, Defendant.
AM ENDEDBRIEF OFAPPELLANT
Chenoweth Law Group, PC
510 SW FifthAvenue / FifthFloor
Portland, OR 97204
Telephone: (503) 221 -7958
WASB No. 25877
BrianD. Chenoweth
Attorney
for Appellant .
TABLEOFCONTENTS
I. INTRODUCTION 1
II. ASSIGNM ENTS OF ERROR .. 2
III. STATEM ENT OF THECASE. 3
W. ARGUM ENT 8
A. Terminationofthe Club' s NonconformingUse Right Is
Not Authorized
By
Law . 8
B. The Club Is Not ANoiseNuisance 16
1. There IsNoNoiseNuisance Becausethe Club
Is Exempt FromSound Limitations Between
7AM -10PM 16
2.There is NoPublicNoise Nuisance Because
Because Sounds fromthe Club DoNot Affect
the Rights ofAll M embers ofthe Community
Equally
20
C. The Club Is Not a
Safety
Nuisance . 23
D. There Was NoExpansion, Change ofUse, or
Enlargement 26
E.
The Trial Court ErredinDenyingThe Club' s Breach of
Contract Counterclaimand Accord and Satisfaction
Defense 40
F. The Club' s Estoppel Defense ShouldBe
Granted 55
G. The Injunctionand Warrant ofAbatement Should Be
Reversed and Set Aside 71
V. CONCLUSION 78
TABLEOFAUTHORITIES
Federal Cases
Gill v. LDI,
19 F.
Supp.
2d 1188 (W.D. Wash. 1998) 19
Green County v. Tennessee EasternElec. Co.,
40 F.2d 184(6thCir. 1930) . 58
State Cases
Baker v. Lake City Sewer Dist.,
30 Wn.2d 510, 191 P. 2d 844( 1948) . 48
Beringv. SHARE,
106 Wn.2d 212, 721 P.2d 918 ( 1986) 8
BoardofRegents ofthe Univ. ofWashingtonv. City ofSeattle,
108 Wn.2d 545, 741 P.2d 11 ( 1987) . 59
Bunn v. Walch,
54Wn.2d457, 342 P.2d211 ( 1959) . 59
Chambers v. City ofM ount Vernon,
11 Wn.
App.
357( 1974) 73
Chevalier v. Woempner,
290 P. 3d 1031 ( Wash. Ct.
App.
2012) .. 47
Crawfordv. Central SteamLaundry,
78 Wash. 355, 139 P. 56( 1914) .. 21 - 22
DeLongv. Parmelee,
157 Wn.
App.
119, 236P.3d 936(2010) .. 72
Finch v. M atthews,
74 Wn.2d 161, 443 P.2d 833( 1968) ... passim
FranklinCounty v. Carstens,
68 Wash. 176, 122 P. 999 ( 1912) .. 63
ii
G.O. Geyen v. Time Oil Co.,
46 Wn.2d457, 282 P.2d 287( 1955) . 44
Gustaveson v. Dwyer,
83 Wash. 303, 145 P. 458 ( 1915) .. 64
HarborAirServ., Inc. v. BoardofTax Appeals,
88 Wn.2d359, 569 P. 2d 1145 ( 1977) 63
Hearst Communications, Inc. v. Seattle Times Co.,
154 Wash. 2d493, 115 P. 3d 262 (2005) 42
Hite v. Cashmere Cemetery Assn.,
158 Wash. 421, 290 P. 1008 ( 1930) 24
InreM arriage ofHorner,
151 Wn.2d 884, 93 P. 3d 124(2004) . 72
Inre Request ofRosier,
105 Wash.2d 606, 717 P. 2d 1353 ( 1986) 8
Jenkins v. Weyerhaeuser,
143 Wn.
App.
246(2008) 8
Juddv. Bernard,
49 Wn.2d 619, 304 P. 2d 1046( 1956) 17
Keller v. City ofBellingham,
92 Wn.2d726( 1979) passim
Kingv. Riveland,
125 Wn.2d 500, 886 P. 2d 160 ( 1994) .. 72
Kramarevcky v. Dept. ofSocial andHealth Servs.,
122 Wn.2d 738, 863 P.2d 535 ( 1993) . 57
Linsler v. Booth Undertaking Co.,
120 Wash. 177, 206 P. 976( 1922) 16
iii
Longv. T - H TruckingCo.,
4 Wn.
App.
922, 486 P. 2d 300 ( 1971) 44
M athewson v. Primeau,
64 Wn.2d 929, 395 P.2d 183 ( 1964) 73
M cCartney v. Glassford,
1 Wash. 579, 20 P. 423 ( 1889) .. 44
M iller v. City ofBainbridgeIsland,
111 Wn.
App.
152 ( 2002) . 27
Nollette v. Christianson,
115 Wn.2d 594, 800 P. 2d359 ( 1990) . 8
Payne v. Johnson,
20 Wash.2d24, 145 P.2d 552 ( 1944) 73
Rhod-A -Zalea & 35`
h,
Inc. v. Snohomish County,
136 Wn.2d 1, 959 P. 2d 1024( 1988) .. passim
Rosema v. City ofSeattle,
166 Wn.
App.
293, 269 P.3d 393 (2012) .. 41
Schneider v. Snyder' s Foods, Inc.,
116 Wn.
App.
706, 66P.3d 640 (2003) . 8
Sorrell v. Young,
6 Wn.
App.
220, 491 P.2d 1312 ( 1971) 59
Spokane Cy. v. Glover,
2 Wn.2d 162, 97 P.2d 628 ( 1940) 8
Spokane St. Ry. v. Spokane Falls,
6 Wash. 521, 33 P. 1072 ( 1893) 57
State v. Hayes Inv. Corp.,
13 Wn.2d306, 125 P.2d262 ( 1942) ... 21, 22,25
iv
State ex rel. Shannon v. Sponburgh,
66 Wn.2d 135, 401 P. 2d635 ( 1965) 59, 67
State ex rel. Standard
M ining &Dev. Corp. v. City ofAuburn,
82 Wn.2d 321, 510 P. 2d647( 1973) 16
State v. Stubblefield,
36 Wn.2d 664, 220 P.2d305 ( 1950) .... 73
Strandv. State,
16 Wn.2d 107, 132 P. 2d 1011 ( 1943) passim
Tiegs v. Boise Cascade Corp.,
83 Wn.
App.
411, 922 P.2d 115 ( 1996) 46
Tiegs v. Watts,
135 Wn.2d 1, 954 P. 2d 877( 1998) 46
Waremart, Inc. v. Progressive Campaigns, Inc.,
139 Wn.2d 623, 989 P. 2d 524( 1999) 72
Barder v. M cClung,
93 Cal.
App.
2d692, 209 P. 2d 808 ( 1949) 60
Christensen v. HilltopSportsman Club, Inc.,
573 N.E.2d 1183 ( Ohio
App.
1990) 73
City ofCharlestownAdvisory PlanningCommn. v. KBJ, LLC,
879 N.E.2d 599 (Ind.
App.
2008) . 59
ConcernedCitizens
of
Cedar HeightsWoodchuck Hill
Roadv. DeWitt Fish & Game Club,
302 A.D.2d 938, 755 N.Y.S. 2d 192 (N.Y.
App.
2003) 19
Hendgen v. Clackamas County,
836 P. 2d 1369 (Or.
App.
1992) 35
Lehman v. Windler Rifle & Pistol Club,
44Pa. D. & C.3d 243, 1986 WL20804(Pa. Com. Pl. 1986) 19
M orgera v. Chiappardi,
CV990172388S, 2003 WL22705753, * 3
Conn. Super. Ct. Oct. 28, 2003)
affd, 87 Conn.
App.
903, 864 A.2d 885 ( 2005) 60
RichlandTownshipv. Prodex, Inc.,
634A.2d 756(Pa. Com. 1993) 39
Woodsmall v. Lost Creek
Township
Conservation Club, Inc 19
933 N.E.2d 899 (Ind. App. 2011)
Statutes
RCW 7.48.010 . 59,78
RCW 7.48. 120 16- 17
RCW
7.48. 130 21
RCW
7.48. 160 ... 16- 17
RCW
9.41. 190 . 76
RCW
18. 86.010(9) . 59
RCW
36.32. 120(2) .. 54
RCW
42.30 .. 54
RCW
70. 107.080
18
vi
Regulations andRules
WAC 173 -60-
010 59
WAC 173 -60-
040 . passim
WAC 173 -60-
050 76
KCC
2. 116. 140 16
KCC
2. 116. 150 10
KCC
9.56.030 . 10
KCC
9.56.040 10- 11
KCC
9.56.050 . 10
KCC
9.56.060 . 10- 11
KCC
10.24.090 16
KCC
10.28.040 .... 13, 16
KCC
10.28. 050(2) 77
KCC
17. 110.515
16
vii
KCC
17. 110.647 27
KCC
17. 110.730 27
KCC
17.381 27
KCC
17.420 16
KCC
17.421. 030.B . 16
KCC
17.455.060 . 9
KCC
17.460.010 . 9
KCC
17.460.020.0 . 10
KCC
17.530.020 10
KCC 17.530.030 10
viii
I. INTRODUCTION
This case is about whether it was lawful and just to terminate the
right ofAppellant Kitsap Rifle and Revolver Club to operate its 88-year-
old
shooting
range. The trial court divested the Club of a valuable
property right without substantial evidence of nuisance conditions and
contrary
to Washington law. The trial court declared the Club' s range a
public nuisance based on speculative safety concerns and a handful of
recent, subjective noise complaints contradicted by others in the same
community. The Club asks this Court toreverse the trial court and affirm
that, it like all other
property
owners,
was entitled to intensify its
operations withinits historical eight acres ofactive use. Further, the Club
requests this Court enforce the plain language ofits contract with Kitsap
County
to secure the Club' s right to continue and improve its
nonconforming use, where overwhelming extrinsic evidence corroborates
this intent.
In the alternative, the Club also asks the Court to estop the
County fromcontradicting the assurances that induced the Club to enter
intothe contract, and fromunjustly enrichingitselfby concealing material
facts about the
property
it soldtothe Club.
Finally, this appeal challenges
the injunctions and warrant of abatement that give the County virtually
unlimitedcontrol over the Club without judicial oversight and without any
showing by
the
County
ofwhat it intends to do with that power. These
1
remedies should be reversed because they are arbitrary, excessive, and
premisedonmultiplereversible errors.
II. ASSIGNM ENTS OFERROR
1.
The trial court erred in declaring the Club' s nonconforming use right
terminated.
2.
The trial court erredinjudgingthe Club a publicnoise nuisance.
3.
The trial court erredinjudgingthe Club a public safety nuisance.
4.
The court erred in concludingthe Club unlawfully expanded, changed,
or enlarged its nonconforminguse.
5.
The court erred in denying the Club' s accord and satisfaction defense
andrelatedbreach ofcontract counterclaim.
6.
The court erred indenyingthe Club' s estoppel defense.
7. The court erred in its issuance of two injunctions and a warrant of
abatement.
III. ISSUES PERTAINING TO ASSIGNM ENTS OFERROR
1.
M ay a trial court terminate an ongoingnonconforminguse that has not
been abandoned where there is no applicable amortization ordinance
and noordinance expressly authorizing immediate termination?
2.
Should a property owner be able to continue enjoying his property
when a local government claims it is a noise nuisance but has no
objective decibel evidence and a significant number oflandowners in
the community testify the noise has noeffect on their rights?
3.
Should a property owner be allowed to act freely on his property
absent evidence of a substantial and likely harmto his neighbors, as
opposedtoa mere possibility offuture harm?
4.
M ay a court find an expansion, change, or enlargement ofuse where
the property owner has not increased its area ofactivity or substituted
the use for a different kind altogether and has only increased the use
withinits historical area?
5.
M ay a local government sell a property and then take legal action
against the new owner for activities and improvements expressly
authorized by the contract of sale where extrinsic evidence confirms
the contract was intendedtoavert such disputes?
6. Should a local government be allowed to induce a person to take title
to property by assuring his land use is approved and the sale is
intended to secure his right to continue,
concealing the contrary
2
allegations ofits code compliance officer, and then, after completing
the conveyance, sue the landowner for continuingthe land use?
7.
M ay a trial court issue injunctions and a warrant ofabatement that are
not narrowly tailoredand prohibit lawful conduct.
IV. STATEM ENT OFTHECASE
This appeal arises from the judgment of the Pierce County
Superior Court, following a bench trial, which prohibits the use of the
Club' s property as a shooting range unless it obtains a conditional use
permit ( CUP) from the
County.
The court terminated the Club' s
nonconforminguse right based onthe conclusionthat the Club unlawfully
expanded or changed the use of its
property.
The court also concluded
shooting
at the Club constitutes a public noise and
safety
nuisance. The
court issued declaratory and injunctive reliefprohibitingall shooting at the
Club unless it obtains a CUP. CP 4084-86. The CUP process will give
the County broad power tocontrol and conditionvirtually every aspect of
the Club' s operations andfacilities. See KCC 17.421. 030.B.
The Club is a Washington non-profit corporation founded by
charter in 1926" for sport and national defense." CP 4054( FOF 4, 6).
Fromits inception, the Club occupied the property where its facilities are
presently located and where it has continuously operatedas a gun club and
shooting
range. CP 4054-55 ( FOF 7- 8).
The property consists of
approximately 72 acres, including approximately eight acres ofactive or
3
intensive use or occupancy containing the Club' s improvements, roads,
parking areas, open" blue sky" shooting areas, targets, storage areas, and
associated infrastructure (the "
Property ").
CP 4054-55 ( FOF8); Exs. 438,
486(maps delineatingeight acres).
Shooting was not historically confined to the developed ranges and
cleared areas at the Property, but also took place on the periphery ofthe
pistol and rifle ranges and within the eight -acre historical use area. CP
4059 ( FOF 29). Some of the Club' s historical activities involved rapid
fire
shooting
and
shooting
in a
variety
of directions. VT 1782: 21
1784: 12, 1873: 1- 1874: 13, 1907: 14-23.
The Club historically offered
firearms
training
to classes of as
many
as 70 people. VT 1917: 16-
1919: 21.
In 1993,
the Kitsap County Board of County Commissioners
BOCC) authored a letter tothe Club that recognized and" grandfathered"
the Club' s
nonconforming
use right as a
shooting
range. CP 4055 ( FOF
10); CP 4075 ( COL 6); Ex. 315. As of 1993, Clubactivities included
rapid fire shooting, fully automatic firearms, cannons, explosives, and
sight in" season for hunters. CP 4059, 4073 -74( FOF 30, 83, 87).
Shooting at the Club occurred during daylight hours, which are fromas
early
as 6 amto as late as 10: 15 pm. CP 4059 ( FOF 30); VT 1027: 24
4
1028: 14, 1096: 10 - 18, 1068: 28 -25, 1069: 7- 9. At the time of trial, the
Club' s hours were from7 amto 10 pm. CP 4073 ( FOF80).
M ilitary training
occurred at least once in the
early
1990s. CP
4071 ( FOF 72); VT 2019: 12- 2020: 3. Between 2002 and 2010, the Club
hosted U.S.
Navy
small arms
training
exercises. CP 4071 - 72 ( FOF 72-
75).
There is no findingthat any Navy training is planned for the future.
The State of Washington owned the Property and leased it to the
Clubuntil 2009. CP 4055 (FOF 11).
In 2009, the County took title tothe
Property as part ofa package deal inwhich it obtained other property from
the State that the
County
wanted to
develop
into a park. CP 4056-57
FOF 16- 17).
The State wouldonly convey the parkland to the County if
it also took the Club
Property.
Id. (FOF 17).
The County did not want to
retaintitle tothe Property because it was concerned about potential heavy
metals contamination from its long use as a shooting range, which its
appraiser valued as a $2 -3 million
cleanup liability.
CP 4057( FOF 19).
The Club wanted title to the Property because it was worried that ifthe
County
owned the
Property
it would end the Club' s operations there. Id.
FOF 18).
The Club' s attorney understood that ifit continued operating
its shooting range the facility would not be treated as a hazardous waste
site. VT 2894: 7- 2895: 9.
5
The parkland and Club Property were the subject of months of
negotiation and years of communication among the County, State, and
Club. CP 4056-57( FOF 17-20).
The Club and County eventually
negotiated a written Bargain and Sale Deed( " Deed") to document the
conveyance ofthe Property and their agreement to certain" covenants and
conditions"
regarding
its use. CP 4056( FOF 14); CP 4087-92 ( Deed).
On
M ay
11, 2009, the
County
passed a writtenresolution
stating: "
it is in
the public interest for firearm safety as well as in the best economic
interest ofthe County to provide that KRRC continue to operate with full
control over the
property
on which it is located." Ex. 477 at 3 ( emphasis
added). The public record also represents that the Commissioners had
determined the Club was compatible with the community and the
County' s long termlanduse plan. Ex. 293; VT 2116: 10- 2117: 1.
On June 18, 2009, the County recorded a deed transferring the
Property fromthe State to the County, and then immediately recorded the
Deed negotiated with the Club. CP 4056(FOF 14); CP 4087-92 ( Deed).
Paragraph three of the Deed contains language requested by the Club' s
attorney stating
that the Club"
may
upgrade or improve" its facilities
withinits historical eight acres" consistent with management practices for
a modern
shooting
range." CP 4088 -89 ( 3). The Deed also states the
Club' s active shooting range shall be confined toits historical eight acres,
6
and any expansion will require an application to the County and
compliance with land development ordinances. Id. The Deed requires
the Club to offer public access to its shooting range, and requires its
activities to conformto" accepted
industry
standards and practices." CP
4088 -89 ( 3 - 5).
The Deed requires the Club to indemnify the County
against
any
environmental liabilities at the
Property.
CP 4087-88( 1).
Unbeknownst to the Club, before the parties signed the Deed the
County' s code compliance supervisor communicated to the County
Commissioners and the County' s Deed negotiator his allegations that the
Club was, in essence, an unlawful nuisance. VT 2827: 3 - 9, 2828: 19 -23,
2829: 19- 2831: 3 ( negotiator); VT 415: 17-25, 574: 9 -576: 3 ( compliance
supervisor).
The County didnot share this informationwiththe Clubuntil
after it signed the Deed. VT 2097: 2- 2098: 19, 2090: 4-23, 2092: 3 - 20; VT
2893: 13- 2894: 4.
Approximately 18 months after the parties entered into the Deed,
the
County
filedthis lawsuit. See CP 2, 88.
The County alleged the Club
had committed noise and safety nuisance violations, nonconforming use
violations, and site development
permitting
violations. Id.
The County' s
complaint and three amended complaints have never alleged a breach of
the Deed. Id.; see, e.g., CP 2, 88, 630,649, 1491, 1553, 1695, 1757.
7
After the parties'
14-day bench trial, the Club was continuing its
operations whenthe trial court issued a declaratory judgment permanently
terminating
the Club' s
nonconforming
use right. CP 4084. The trial court
also enjoined all shooting at the Property without a CUP, and permanently
enjoined certain specific activities and hours of operation, even with a
CUP. CP 4085.
V. ARGUM ENT
Conclusions of law are reviewed de novo.
1
Factual findings are
reviewed for substantial evidence.'
A declaratory judgment is reviewed
as other orders, judgments and decrees. "
3
A.
Termination of the Club' s Nonconforming Use Right Is Not
AuthorizedBy Law.
The trial court did not decide the scope of the Club' s
nonconforming
use right. Instead,
it issued a declaratory judgment
abruptly terminating the nonconforming use right, in its entirety, on the
grounds that there had been a change of the use, the use had expanded,
there was unpermitted site development, the use was a nuisance, or the use
Nollette v. Christianson, 115 Wn.2d 594, 800 P.2d 359 ( 1990) (
citing Spokane Cy. v.
Glover, 2 Wn.2d 162, 97 P.2d628( 1940).
2
Jenkins v. Weyerhaeuser, 143 Wn.
App.
246, 256- 57( 2008) (
reversing fact findingthat
was not supported
by
substantial evidence).
Beringv. SHARE, 106 Wn.2d212, 721 P.2d
918( 1986);
see also In re Request ofRosier, 105 Wn.2d 606, 717 P.2d 1353 ( 1986)
appellate courts are not bound by the trial court' s findings ifthose findings are based
entirely on written material; the court can judge the sufficiency of such materials for
itself).
3 Schneider v. Snyder's Foods, Inc., 116 Wn. App. 706, 713, 66 P.3d640, 643 ( 2003).
8
had increased. See CP 4076-80, 84. The Club disputes each of these
conclusions, but even ifthey were correct the law would not authorize
termination.
The trial decision cites several legal authorities as support for the
termination
remedy.
At one point, the decision cites to" KCC Chapter
17.460 and Washington' s common law regarding nonconforming use."
CP 4080( COL26). Later, the decisionreferences KCC 17.455.060, KCC
Chapters 17.381 and 17.420, KCC Title 17, andRhod-A -Zalea & 35`", Inc.
v. Snohomish
County,
136 Wn.2d 1, 7, 959 P. 2d 1024( 1988). CP 4081,
83 ( COL27, 35). None ofthese authorities support termination.
Title 17 ofthe
Kitsap County
Code ( "KCC "), "
Zoning,"
includes
Chapter 17.460
regarding " Nonconforming Uses, Structures and Use of
Structures" The stated purpose of Chapter 17.460 is" to permit those
nonconformities to continue until they are removed or discontinued."
KCC 17.460.010 ( emphasis added).
Thus, Kitsap County' s policy favors
preservation of
nonconforming
uses. There is no provision in Chapter
17.460 authorizingterminationofa nonconforminguse right.
Likewise, KCC 17.455.060 says nothing about termination of a
nonconforming
use right.
It only provides that a nonconforming use " shall
not be altered or enlarged in
any
manner"
unless doing so will create
greater conformity with uses permitted within, or requirements of, the
9
zone[.]" KCC 17.460.010. Washington common law favors free use of
property,
and holds that
zoning
ordinances shall "
not be extended by
implication to cases not clearly withinthe scope ofthe purpose and intent
manifest in their language." State ex rel. Standard
M ining & Dev. Corp.
v.
City of
Auburn, 82 Wn.2d 321, 326, 510 P. 2d 647( 1973). Therefore,
KCC 17.455.060 does not terminate a nonconforminguse right.
Remedies for land use violations are provided
by
the
Enforcement" chapter of Title 17, KCC 17. 530. There are three
enforcement mechanisms, none of which authorize termination of a
nonconforming
use right. The first mechanismis a civil infraction, which
can result in
monetary
penalties, restitution, or
community
service. KCC
17.530.020, 2. 116. 140, 2. 116. 150. The second is administrative
enforcement, which canresult involuntary correctionby the landowner or
abatement by the County. KCC 17.530.030, 9.56.030, 9.56.040, 9.56.050,
9.56.060. The third is a suit for injunction to abate a nuisance. KCC
17.530.030.
County
code does not authorize termination of a
nonconforming use right as a remedy for change, expansion, unpermitted
development, nuisance, or increased use.
The trial court also citedKCC 17.381 and 17.420. CP 4083 ( COL
34-35).
These chapters create zoning classifications and a process to
obtain a conditional use permit.
They do not authorize termination of a
10
nonconforming use right, which exists independently ofsuch later - enacted
zoningclassifications. See generally, KCC 17.460.
Like Kitsap County Code, Washington common law provides no
authority
for termination ofthe Club' s
nonconforming
use right. The trial
court cited Rhod-A -Zalea but that case does not authorize termination.
136 Wn.2d at 7. Instead, it emphasizes the great extent to which
nonconforming use rights are protected against termination by the
Washingtonconstitutionand commonlaw.
In Rhod-A- Zalea, the local government required the owner of a
nonconforming use toobtain a grading permit even though nosuch permit
was historically required ofhis peat- miningbusiness. Id. at 3 - 4, 8- 9. The
Washington Supreme Court held the permit was required because it was
imposed by a reasonable health and safety regulation that would not
terminate the
nonconforming
use. Id. at 19.
The landowner had already
undertaken the grading and excavation activities that required the permit.
Nevertheless, its
nonconforming
use right was not terminated, and a
conditional use permit was not required. Id. at 17. The court
distinguished cases where a regulation had the effect of terminating a
nonconforming
use right or
rendering further nonconforming use
impractical. Id. at 12 - 13. Rhod-A- Zalea, therefore, does not support
termination, but actually protects the Club fromit.
11
The very essence ofa nonconforming use right is its protection of
the use against immediate termination by later- enacted government
regulation. Id. at 9 - 10. "[ I]t wouldbe unfair and perhaps unconstitutional
torequire an immediate cessation ofa
nonconforming
use." Id. at 7.
The only grounds for terminationrecognized by Rhod-A -Zalea are
abandonment
by
the landowner and amortization
by
ordinance. 136
Wn.2d 17- 19. The court did not find abandonment, and there is no
applicable amortization ordinance. The
County
did not allege
abandonment in its pleadings or argue for termination based on
abandonment. Even ifabandonment couldbe considered, the Club never
abandoned its use ofits
Property
as a
shooting
range. Abandonment and
amortization provide no grounds for termination of the Club' s
nonconforminguse right.
The trial court terminated the Club' s nonconforming use right on
the grounds that there hadbeen a change ofthe use, the use had expanded,
there was unpermitted site development, the use was a nuisance, or the use
had increased.
There is no legal authority for termination on such
grounds. Terminationofthe Club' s nonconforminguse right was inerror.
B. The ClubIs Not a Noise Nuisance.
The trial court made numerous findings of fact regarding sounds
fromthe
Property.
See CP 4070, 73 -74(FOF 70, 80 -87). The court then
12
concluded the sound of the Club is a public nuisance, and issued a
corresponding
judgment. See CP 4075 -78( COL 3, 13, 18, 20, 21); CP
4084-85 ( Judgment). In essence, the court decided the amount ofsound
leaving
the
Property
increased from its historical levels
particularly
within the last five or six yearsand at some point became a public
nuisance to the
community
within two miles ofthe Club. See, e.
g.,
CP
4073 -74(FOF 84- 85).
At trial the County presented no objective sound measurements or
expert
testimony regarding
sound.
The County admitted it possesses a
decibel meter, which it
typically
uses to police its sound ordinance. VT
568: 16- 19.
The County did not use the decibel meter in this case and
never alleged a sound ordinance violation. VT 597: 7- 598: 9; 626: 5 - 10.
The County' s evidence of sound fromthe Club consisted almost
entirely of lay witness testimony regarding their subjective perceptions.
Almost half of the County' s witnesses were not particularly bothered or
impacted by the expected noise coming fromtheir pre - existing gun club
neighbor.
Although the County' s discovery included some audio and
video recordings with audible sounds ofshooting at the Club, none were
calibratedtoa decibel meter. The County' s chiefbuildingofficial testified
he was not aware ofany County study todetermine whether the Club was
in conformance with the
County'
s noise ordinance. VT 187: 15 - 18,
13
268: 19 - 269: 3. The trial court denied the Club' s motion for a site visit to
the Club and never listenedtoa live demonstration ofshooting at the Club
fromany location. VT 13: 14- 14: 14.
There are dozens, ifnot hundreds ofhomes withintwomiles ofthe
Club. Ex. 3. Eighteen witnesses who lived withintwomiles ofthe Club
gave subjective testimony about sound fromthe Club. See Ex. 3 ( depicting
locations of
County
witnesses). Six testifiedit was not objectionable. The
rest had complaints, but there was little agreement about the specifics.
The trial court did not find that the sounds fromthe Club affected equally
the rights of
every
citizenwithinthe " two- mile"
community.
Instead, the
finding was that the complaints ofthe vocal minority were " representative
of the experience of a significant number of home owners within two
miles ofthe
Property."
CP 4073 (FOF84) (emphasis added).
Six ofthe eighteen witnesses confirmed sounds fromthe Club do
not
substantially
interfere with the use and enjoyment oftheir
property.
4
Among the twelve who complained, some complained of only modest
4 See VT 1163: 7- 11 ( Arnold Fairchild is not bothered by the sounds); VT 986: 11 - 15
Deborah Slaton does" not
particularly"
consider sounds
annoying);
VT 1174: 8- 17
Lee Linton was never motivated to complain about the sounds); VT 1073: 22- 1075: 2,
1080: 1 - 5 ( Jo Powell rarely hears sounds of gunfire, and they never caused her to lose
enjoyment of her
property); VT 1928: 4- 12 ( Frank Jacobsen only hears sounds a " little
bit" when is home and does not consider thema problem); VT 2300: 5 - 16, 2298: 12 - 14
Kenneth Barnes barely noticesthe sounds).
14
annoyances.
5
Others expressed negative attitudes that appear to have
arisen
only
after
learning
the
Navy'
s
nearby shooting
range had closed.
6
Some let their imagination regarding safety or the sources of sounds get
the better of them.
Subsequent owners of the same property had
dramatically
different experiences.
8
Some of the most vociferous
complaints were made
by
individuals
living
furthest fromthe Club.
9
It is
difficult and unnecessary to reconcile these wildly varying accounts.
5
Craig Hughes testified the noise bothers him, but only when he is outside. VT 911: 8-
12. He testified, " I love where I live," and he intends to
stay.
VT 917: 21 - 25.
Colby
Swanson testified sounds fromthe Club were only an issue after 10 o' clock at night. VT
520: 8- 17. Donna Hubert hears sounds from the Club inside her house
only "
on
occasion." VT 873: 220 -25. The sounds upset her but have not caused her to change
habits or stop inviting visitors. VT 876: 18- 877: 7. WilliamFernandez admits the sounds
he hears inhis home are
generally "
sporadic and distant." VT 406: 17- 21.
6
Kevin Gross is a former
Navy
employee. 1391: 14- 21.
In 2008 he learned the Navy
had closed its outdoor shooting range, which was formerly located a short distance from
the Club. VT 1437: 24- 1438: 5, 1391: 14- 21.
Only then did he begin complaining of
increased sound from the Club. VT 1433: 25- 1434: 5, 1439: 7- 10. Eva Crimnoticed
sounds in2004 to 2005 after she learnedthe Navy' s shooting range had closed in 2003 or
2004. VT 962: 18- 963: 11.
7
M olly Evans admitted she cannot separate her perception of "annoying" gunfire from
her personal safety concerns regarding the Club. VT 1129: 8- 15. Robert Kermath didnot
notice sounds until 2007, a full year after he moved intohis home located 1. 5 miles from
the Club. VT 302: 18- 19, 304: 17- 305: 5, 306: 20 - 307: 8, 311: 7- 14, 323: 16-20. He
testified he is not qualified to identify sources ofdifferent sounds, yet concluded certain
sounds were explosionsfrom"
binary
bombs." VT 311: 7- 14, 323: 16-20. He claimedthe
explosions rattle his windows. VT 312: 4- 11.
8
Jeremy Bennett purchased M r. Swanson' s house in 2009. VT 886: 2 - 5; see supra n. 5.
Unlike M r. Swanson, M r. Bennett feels the sounds ofthe Club are highly objectionable.
VT 888: 19- 889: 8, 889: 1 - 2.
Similarly, Steven Coleman lived across the street fromthe
Club from 1981 until sounds fromthe Club forced himto move in 2006. VT 919: 23-
921: 8, 933: 25- 934: 7. On cross- examination, M r. Coleman admitted he didnot think the
noise was bothersome enough to disclose to the buyers, who are his friends and happily
reside there basedon his regular visits withthem. VT 937: 3 - 12.
9
Like M r. Kermath, M r. Gross lives
approximately
1. 5 miles from the Club. VT
1388: 25 - 1390: 2; Ex. 3.
M r. Gross is the only witness who claims rifle shooting at the
Club causes" echoes" or " reverberations" throughout the community. VT 1407: 6- 14,
1407: 24- 1408: 7.
15
What is clear is that the rights oflandowners withintwomiles ofthe Club
were not all equally affected.
1. There Is No Noise Nuisance Because the Club Is Exempt
FromSound Limitations Between 7AM -10PM .
Washington State and KitsapCounty define a nuisance interms of
unlawful"
activity and declare that activity expressly authorized by the
legislature cannot be deemed a nuisance. RCW 7. 48. 120; RCW 7.48. 160;
KCC 17. 110.515; Linsler v. Booth
Undertaking
Co., 120 Wash. 177, 206
P. 976( 1922) (
defining "
nuisance" to mean"
the unlawful doing of an
act ").
The State and County have established objective, decibel -based
sound regulations that are the prevailing standards for the community
surrounding
the Club. WAC 173 -60 -040; KCC 10.28.040. These
regulations
expressly
exempt authorized
shooting
ranges, such as the
Club, fromsoundlimitationsbetweenthe hours of7 amand 10 pm. WAC
173- 60- 050( 1)( b); KCC 10.28.050(2). Even if sound regulations were
applicable tothe Club, there is no evidence the Club ever exceeded them.
Onthisrecord, the Club is not a noise nuisance.
Under Washington law, a nuisance: "
consists in unlawfully doing
an act, or omittingtoperforma duty, which act or omissioneither annoys,
injures or endangers the comfort, repose, health or safety of others..."
16
RCW 7. 48. 120 ( emphasis added). This statute is incorporated into the
definitionof "nuisance" foundinKCC. See KCC 17. 110.515.
RCW 7.48. 160 provides: "
Nothing which is done or maintained
under the express
authority
ofa statute, can be deemed a nuisance." This
statute is incorporated into
Kitsap County
Code. KCC 17. 110.515. The
Washington Supreme Court applied RCW 7. 48. 160 inJuddv. Bernard, 49
Wn.2d 619, 304 P. 2d 1046( 1956). There, landowners brought a nuisance
claim to prevent the state from poisoning fish in a lake, which was
expressly
authorized
by
statute. Id. at 619 -21. The court reasoned it
could not find a nuisance because to do so would"
usurp legislative and
lawfully
delegated administrative powers ofthe state." Id. at 622.
Under Washington law, statutes, regulations, and ordinances
authorizing certain acts must be respected when determining whether an
activity
is a nuisance.
To find a noise nuisance arising fromuse of the
Club' s shooting range between 7 amand 10 pmwould usurp the authority
of the State,
Kitsap County, and the Department of Ecology, which
exempt the Club fromsound limitations duringthat time.
State and county regulations regardingpermissible sounds fromthe
Club are
virtually
identical.
They each permit a range oflevels from55 to
70 dB,
depending
on the types of properties.
WAC 173 -60 -040; KCC
10.28. 040.
They
each exempt "[
s]ounds created by the discharge of
17
firearms onauthorized shootingranges" between the hours of7 amand 10
pm. WAC 173- 60- 050( 1)( b); KCC 10.28.050(2).
1
Kitsap County has
never argued these exemptions are unreasonable, contrary tolaw, an abuse
ofthe police power, or otherwise ineffective.
The trial court found the Club' s shooting range was authorized
pursuant to its nonconforming use right, as confirmed by the County in
1993. CP 4055 ( FOF 10); CP 4075 ( COL 6).
The only time the Club' s
shooting range has ever been unauthorized was when the Club was shut
down between the trial court' s decision and the stay of that decision by
this Court. At the time of trial, the Club was still authorized, and its
exemption from sound limitations should have disposed of the sound-
based nuisance claim. The trial court erredinfailingtoconclude, pursuant
toState and local regulations, that shooting sounds fromthe Club are not a
nuisance between7 amand 10 pm, regardless ofvolume.
If the shooting range sound exemptions somehow were not
applicable to the Club, the decibel limitations themselves would set the
standard for the
County'
s noise nuisance claim.
The County failed to
explain at trial how it could claima property owner was a noise nuisance
when it had no evidence ofany exceedance ofits own established decibel
limitations, which set the levels deemed reasonable by Kitsap County
10 The Noise Control Act of 1974 expressly directs the Ecology to" provide exemptions
or
specially
limitedregulations
relating
torecreational
shooting[.]"
RCW 70. 107.080.
18
itself. The proper application of sound regulations to a noise nuisance
claim is illustrated
by
Gill v. LDI, 19 F.
Supp.
2d 1188 ( W.D. Wash.
1998).
There, the plaintiffs alleged a quarry was a noise nuisance, and
submitted expert testimony and decibel measurements at summary
judgment as evidence that the quarry exceeded the applicable state and
local regulations. Id. at 1199. The objective decibel evidence allowed the
plaintifftocontinuetotrial onthe noise nuisance claim. Id.
Another instructive case is Woodsmall v. Lost Creek Township
Conservation Club, Inc., 933 N.E.2d 899 ( Ind.
App.
2011). There,
landowners near a
shooting
range claimed a noise nuisance. The trial
court denied the claim after a bench trial. Id. The Indiana Court of
Appeals affirmed,
noting, "[
t]he decibel level was not addressed in the
evidence adduced."
Id. at 903; see also, Concerned Citizens ofCedar
HeightsWoodchuck Hill Roadv. DeWitt Fish & Game Club, 302 A.D.2d
938, 755 N.Y.S. 2d 192 ( N.Y.
App.
2003) (
affirming summary judgment
dismissal ofnoise nuisance claimagainst gun clubbecause no evidence of
violation of local noise control ordinance); see also Lehman v. Windler
Rifle & Pistol Club, 44 Pa. D. & C.3d 243, 246, 1986 WL 20804( Pa.
Com. Pl. 1986) (
dismissing noise nuisance claimagainst rifle range based
on" general rule" that " no one is entitled to absolute quiet in the
19
enjoyment of his property; but one may insist on a degree of quietness
consistent withthe standardprevailing inthe locality inwhich one lives ").
The Club is exempt fromsound limitations between 7 amand 10
pm. WAC 173- 60- 050( 1)( b); KCC 10.28.050(2). Even if it were not
exempt, State and local law measures and limits sounds based on decibels.
Without such evidence, the County' s noise nuisance claimrelies entirely
on the apparently delicate " aesthetic sense" ofa handful oflay witnesses,
which cannot prove a nuisance. See M athewson v. Primeau, 64 Wn.2d
929, 395 P. 2d 183 ( 1964) ( "
That a thing is unsightly or offends the
aesthetic sense of a neighbor, does not ordinarily make it a nuisance ").
The Club' s counsel is aware ofno appellate opinioninWashington where
a historical sound source exempt fromsound regulations was held a public
noise nuisance solely upon the subjective testimony ofa few lay witnesses
who found it
annoying.
The trial court' s decision that the sounds of
shooting at the Club are a public noise nuisance to the community within
twomiles fromthe Club was inerror and shouldbereversed.
2. There Is No Public Noise Nuisance Because Sounds from
the Club DoNot Affect the Rights of All M embers ofthe
Community Equally.
Inaddition, the trial court' s decision that the Club is a publicnoise
nuisance shouldbe reversedbecause the evidence does not show the rights
of all members of the community within two miles of the Club were
20
equally
affected
by
sounds fromthe Club. Since at least 1881, the State of
Washingtonhas defined a " publicnuisance" as" one which affects equally
the rights ofan entire community or neighborhood, although the extent of
the damage
may
be unequal." RCW 7. 48. 130. Under thisstatute, a public
nuisance does not exist if the rights of only some members of a
community
are impacted, nor even if a substantial portion of the
community
is impacted. The rights of the " entire"
community must be
impacted"
equally."
Id.
In State v. Hayes Investment
Corp.,
13 Wn.2d 306( 1942) the
plaintiffs alleged a noise nuisance and sought an injunction against a
public beach and trailer
camp
owned and operated
by
the State. The
Washington Supreme Court on review found the plaintiffs were " not in
agreement as to the cause for complaint." Id. at 311. Therefore, it was
clear the activities at issue " d[id] not affect `equally the rights ofan entire
community
or neighborhood, "' and there was nopublic nuisance pursuant
toRCW 7.48. 130. Id.
In Crawford v. Central SteamLaundry, 78 Wash. 355, 139 P. 56
1914)
the Washington Supreme Court reversed the trial court' s finding
of nuisance. The plaintiffs complained of "noises, odors, smoke, and
soot," but their
testimony
showed
they
were " not
similarly
affected." Id.
at 356. The court held it was improper toabate the laundry as a nuisance
21
simply
because it was"
offensive to some of the residents and property
owners withinits immediate
vicinity."
Id. at 357-58 ( emphasis added)."
Under RCW 7.48. 130, Hayes Investment
Corp.,
13 Wn.2d at 306
and Crawford, 78 Wash. at 355, a public nuisance exists only ifit has an
equal effect on the rights ofan entire
community
or neighborhood. When
numerous witnesses from an alleged community testify they have no
problemwith sounds froma shooting range, the rights ofall members of
the
community
are not
equally
affected. In such a case, there is nopublic
nuisance.
Numerous witnesses who live within two miles from the Club
testified that noise fromthe Club is not a problemfor them. Several of
these witnesses were called to testify by the County itself, and had no
connection withthe Club other thantheir proximity. Among the witnesses
who felt the Club' s sounds are
annoying,
there was substantial
disagreement and the evidence was
entirely
subjective. The rights ofthe
entire _community are not equally impacted by sounds from the Club.
Therefore, as a matter oflaw, the trial court' s conclusion that the sounds
constitute a public nuisance within twomiles ofthe Club was erroneous.
The publicnoise nuisance decision shouldbe reversed.
11 The claimin Crawfordwas not a " public" nuisance claim, but the court treated it like
one because the plaintiffs were a groupoftenpeople whoownedor occupied property in
the vicinity ofa steamlaundry, which they sought toenjoinas a nuisance.
22
C.
The ClubIs Not a Safety Nuisance.
The trial court expressly found that the U.S. Navy inspected the
Club' s pistol range while it was used for small arms military training
between 2004 and 2010 and determined the facility was acceptable for
training.
CP 4072 ( FOF 75 -76).
Despite the Navy' s determination, with
all its expertise, the trial court concluded the Club is so unsafe as to
constitute a publicnuisance. CP 4075 -78 ( COL3, 11, 21).
The trial court supported its decision with three findings of fact
regarding
the
safety
ofthe range. CP 4070 (FOF67-69).
They includeno
finding
that
any
particular
activity
at the Club is unsafe.
They include no
finding that any bullet fromthe Club ever struck a person or a nearby
property.
Instead, the court found that "
more likely than not, bullets
escaped fromthe
Property'
s
shooting
areas" and"
more likely than not,
bullets will escape the
Property'
s
shooting
areas[.]" CP 4070 ( FOF 68)
emphasis added).
The Club' s" shooting areas" cover only eight ofits 72
acres. CP 4054-55 ( FOF 8).
The trial court added that the Club' s facilities, safety protocols, and
enforcement are " inadequate to contain bullets to the
Property[.]"
CP
4070 (FOF69).
Yet the court couldnot findthat bullets are likely toleave
the Club
Property
and cause substantial harm.
The court found only that
bullets from the Club"
will possibly strike persons or damage private
23
property
in the future." CP 4070 ( FOF 68) ( emphasis added). The trial
court' s findings of fact do not support its conclusion that the Club is a
safety nuisance.
Washington courts recognize that a mere possibility ofharmdoes
not constitute a
safety
nuisance. InHite v. Cashmere
Cemetery
Assn., the
Washington Supreme Court affirmed that a cemetery was not a nuisance
to public health and
safety
in spite of landowners' allegations that the
cemetery
could contaminate their
drinking
water well. 158 Wash. 421,
424, 290 P. 1008 ( 1930). The evidence showedthe groundwater flowedin
the direction ofthe well, so there was a possibility ofharm. Id. The court
held that for there to be a nuisance the likelihood of harm must be
reasonable andprobable." Id.
The Indiana Court of Appeals applied similar reasoning in
Woodsmall v. Lost Creek
Township
Conservation Club, Inc., where it
affirmedthat a
shooting
range was not a
safety
nuisance. 933 N.E.2d 899
Ind.
App.
2011). Anexpert testified it was" possible" for an errant bullet
fromthe range to"
potentially"
strike a
nearby property.
Id. at 904. In
addition, there was evidence bullets had been found on nearby properties,
bulletscouldricochet offrocks inthe range backstop, bulletshadimpacted
nearby
trees,
and the overall safety of the range could have been
improved. Id.
Yet, no one had ever been struck by a bullet leaving the
24
range, and there was no proofthat any bullets found off - range had come
fromthe range itself, as opposed to other potential sources in the area.
The court found this evidence didnot prove a nuisance. See alsoLehman
v. Windier Rifle & Pistol Club, 44 Pa. D. & C.3d 243, 1986 WL 20804
Pa. Com. Pl. 1986) (
dismissing claims that riflerange was safety nuisance
where the chance of an accidental shooting was largely speculative and
conjectural,
ruling: "[t]he wrong or injury resulting fromthe pursuits ofa
trade or business must beplainly manifest or certain").
The Club acknowledges it is possible for a hypothetical person to
violate the Club' s well - enforced rules and safety protocols and shoot into
the air,
causing
a bullet to leave Club
property.
VT 2109: 19 - 2114: 16
discussing
Club
safety
protocols). Such inappropriate behavior could
occur almost anywhere, however, and there is no evidence the Club
allows, encourages, or assists in such conduct. Enforcement of rules to
prevent misbehavior militatesagainst a nuisance claim. See State v. Hayes
Inv.
Corp.,
13 Wn.2d 306, 312, 125 P. 2d 262 ( 1942) (
findingpublicbeach
was not a nuisance where operator policed rules prohibiting profanity,
drinking, and other misbehavior).
M oreover, whether the Club poses an unlawful safety risk that
constitutes a public nuisance shouldbe measured against the County' s lax
firearm
safety
regulations.
The County permits shooting outside the Club
25
with few restrictions, allowing any lawful firearmto be shot on virtually
any
parcel larger than five acres. See KCC 10.24.090. Given the
County' s minimal standards for shooting safety, it is ironicthat one ofthe
few organizations that invests substantial resources into providing a safe
place for shooting has been deemed a safety nuisance.
As the trial court' s findings indicate, the County failed to prove
any bullet fired on the Club property has ever caused any actual harmto
any
person or
property. The County also failed to prove that such harm
was
likely
to occur. The evidence fell far short of the " reasonable and
probable" likelihood of harm required
by
Washington law. The trial
court' s decisionthat the Club is a safety nuisance was inerror.
D. There WasNoExpansion, Change ofUse, or Enlargement.
The trial court concluded, on multiple grounds, that the Club
unlawfully expanded, changed, and enlarged its use between 1993 and
2009. CP 4075 -76( COL 8- 10); CP 4079 -82 ( COL 25 -28, 30, 32- 33).
12
This conclusion was in error. The Club has not expanded its use because
its areas of active use are confined within the same historical eight acres
that were inuse when the County affirmed its nonconforming use right in
1993.
There was no change of use because the Club has continuously
12 The reference to 1993 alludes to September 7, 1993 when the County acknowledged
the Club' s vested
nonconforming
use right. CP 4055 ( FOF 10). The reference to 2009
alludes to M ay 11 and 13, 2009 whenthe parties entered into the Deed. CP 4058( FOF
22); CP 4087-90 (Deed).
26
used its
Property
as a
nonconforming shooting
range. The Club has
intensified its use gradually over the years, largely as a result of the
County'
s own policies. See VT 2102: 13 - 17. Its intensification is
protectedby the Washingtonconstitution.
The trial court first erred by finding that some activities at the
Property constitute "new or changeduses" because they do not fall within
the current
zoning
definition of "private recreational
facility."
See CP
4080 (COL 25.b-26) (
quoting
KCC 17. 110.647). This was error because,
by its very nature, a nonconforminguse is not defined or limitedby later -
enacted zoningclassifications.
Under Washington law, a nonconforming use right is described by
the historical use of the
property,
not
by
a subsequent
zoning
classification.
See Keller v. City ofBellingham, 92 Wn.2d 726, 727-28
1979) ( " chlorine operations ");
M iller v. City ofBainbridge Island, 111
Wn.
App.
152, 164( 2002) ( " concrete
casting
business"). In addition, a
use" should not be confused with the individual " activities" associated
with it. See KCC 17. 110.730 (
defining "
use" to mean" the nature of
occupancy, type of activity or character and form of improvements to
which land is devoted").
To
identify
an expansion, change, or enlargement of a
nonconforming
use, the historical use must be identified and then
27
compared tothe current use. Instead, the trial court erroneously compared
the Club' s current use tothe type ofuse that wouldbe permitted under the
current
zoning
definitionof "private recreational
facility."
This reversible
error appears to have infected the court' s entire analysis of expansion,
change, and enlargement.
The trial court compounded its error by failing to identify the
extent to which the Club has
permissibly
intensified its use. Under Rhod-
A- Zalea, the Club' s nonconforming use is protected by the " broad limits"
ofthe Washington constitution. 136 Wn.2d 1, 7. One ofthose limits is
that intensification ofthe use is allowed unless an ordinance " specifically
prohibit[s]
intensification of a nonconforming use by reference to a
specified volume ofsuch use[.]"
Keller v. City ofBellingham, 92 Wn.2d
726( 1979) ( emphasis added).
There isnosuch ordinance here.
When there is no ordinance prohibiting a specific volume of
intensification, Keller provides the applicable legal standard. Keller
involved a nonconforming chlorine plant that added six cells to its
electrolyticcell
building.
Local citizens brought suit to challenge this as a
violation of the
facility'
s
nonconforming
use right. Id. at 728 -29. The
Washington Supreme Court ruled:
Intensification is permissible, however, where the nature
andcharacter ofthe use is unchanged and substantially the
samefacilities are used. The test is whether the intensified
28
use
is` different in kind'
from the nonconforming use in
existence when the zoningordinance was adopted."
Id. at 731 ( citations omitted) ( emphasis added). The court then applied
this standard and held the additional manufacturing cells were a lawful
intensification. Id. at 729, 732.
Under Keller, analysis of expansion, change, and enlargement
requires a trial court to correctly identify not only the historical use, but
also
any
permissible intensification of that use.
This is the only way to
determine the full scope ofa nonconforming use right and whether and to
what extent the limits oflawful intensification have been exceeded. It is
the only way toaccount for the extent towhich the County' s ownpolicies
contributed to increased use of the Club. VT 2102: 13 - 17; (
explaining
intent of County code was to direct more shooters to ranges such as the
Club).
It is the only way to determine what, ifanything, must be done to
remedy
a violation of the Club' s
nonconforming
use right. The trial
court' s failure to identify the Club' s lawful intensification is reversible
error.
The trial court also erred in concluding the Club' s intensification
of use constitutes an expansion, change, or enlargement. Though the
Club' s nonconforming use has intensified over time, it has always been
the same kind of use: a gun club and
shooting
range for " sport and
29
national defense." CP 4054(FOF 6) ( emphasis added). This use has not
unlawfully expanded, changed, or enlarged.
Expansion" refers to the geographic area or footprint ofthe use.
See KCC 17.460.020.0 ( "
the area of such [nonconforming use] may not
be expanded").
The trial court correctly found that shooting was not
historically confined to the developed ranges and cleared areas at the
Property,
but also took place in" wooded or semi - wooded areas of the
Property, on the periphery ofthe pistol and rifle ranges and within[the]
claimed eight -acre ` historic use' area." CP 4059 ( FOF 29) ( emphasis
added).
The trial court correctly found the Club' s current active and
intensive use and
occupancy
is confined to"
approximately eight acres."
CP 4054-55 ( FOF 8); Exs. 438, 486(maps
delineating
eight acres). The
trial court correctly found the remainder of the Club' s 72 -acre Property
consists of "
resource- oriented lands passively utilized by the Club to
provide buffer and
safety
zones[.]" CP 4054-55 ( FOF 8) ( emphasis
added).
As these findings show, the Club conducts its shooting activities
withinthe same geographic area or footprint used historically. This is not
an expansionofthe nonconforming shootingrange use.
A "change" ofa nonconforminguse occurs when a historical use is
discontinued and a property becomes devoted to new and different
activities. For example, in M iller there was a change of use when a
30
historical concrete castingbusiness in a residential zone was discontinued,
the property changed ownership, and the new owner leased the property
for a
variety
ofnew purposes.
111 Wn. App. at 158, 164-66. There was a
change ofthe nonconforming use.
The trial court
correctly
decided the Club: " enjoyed a legal
protected nonconforming status for historic[sic] use ofthe existing eight
acre range." CP 4075 ( COL 6). The court also referred to" the
nonconforming
use at the
Property
as a
shooting
range[.]" CP 4080 (COL
26). The court even construedthe 2009 Deed as" an acknowledgement of
eight geographic acres of land that were used for shooting range
purposes." CP 4083 ( COL36).
In this case, the
nonconforming
use has not changedit has
always been a
shooting
range. The Club was founded in 1926" for sport
and national defense." CP 4054(FOF 6) ( emphasis added). The Club has
occupied the
Property "[
f]romits inception." CP 4054 FOF( 6, 7). In
1993, the County affirmed the Club' s nonconforming use right to operate
its
shooting
range. CP 4055 ( FOF 10). Until 2009, the State owned the
Property
and leased it to the Club under a series ofagreements. CP 4055
FOF 11). Since 2009, the Club has ownedthe
Property.
CP 4056(FOF
14).
These findings show the Club has continuously used its Property as a
31
gun club and shooting range since long before 1993, without a change of
that specificuse.
As discussed above, the test for whether intensificationis so severe
as to constitute a " change" or " enlargement" is whether the use has
become " different in kind." Keller, 92 Wn.2d at 731. A use is not
different in kind if "the nature and character ofthe use is unchanged and
substantially
the same facilities are used." Id. Careful review of the
findings and evidence shows the Club' s use has lawfully intensified and is
not ofa different nature or character.
The Club' s historical use ofthe Property includeda widevariety of
shooting
and firearm- related activities. As of 1993, Club activities
included rapid-fire
shooting,
use of
fully
automatic firearms, use of
cannons, use ofexplosives, and" sight in" season for hunters. CP 4059,
4071 - 74( FOF 30, 72, 83, 87). Current activities still include these same
activities: rapid fire shooting, use of fully automatic firearms, use of
cannons, and use of explosives. CP 4073 -74, 82 ( FOF 81 - 82, 85 -87;
COL 32 -33). The trial court found these activities have become more
common, but such intensification is lawful and does not constitute a
change or enlargement ofthe use.
Next, the trial court concluded the Club' s use has changed or
enlarged because its current activities include practical shooting practices
32
and competitions. CP 4070, 82 ( FOF 70; COL 32 -33). The trial court
described this
activity
as
involving " rapid-fire shooting in multiple
directions." CP 4070 (FOF 70). Twowitnesses with personal knowledge
of the Club' s historical activities testified in detail about shooting
competitions and activities that involvedrapid-fire shooting, sometimes in
multiple directions, that
historically
took place at the Club. VT 1782: 21-
1784: 12 ( Andrew Casella);
VT 1873: 10 - 13, 1907: 14-23 ( County Sheriff
Deputy
Kenneth Roberts).
The trial court was wrongtoconclude practical
shootinghas turnedthe range intoa different kindofuse.
Toensure safety, the Club created berms and shootingbays within
its historiceight acres usingnativematerials fromthe Property. CP 4082-
84( FOF 33, 37).
Earthen berms or backstops are among the features
historically
built and maintained at the
shooting
range. CP 4081 ( FOF
29).
Continuing that tradition by creating new berms and bays is not a
change or enlargement oftheuse.
The Club has never been a historical preservation or re- enactment
society.
CP 825.
It is and always has been a dynamic community
shooting
organization.
Its historical support for practical shooting reflects
the
continuing
interests of the
community
to provide for " sport and
national defense," as reflected in the Club' s charter. The Club supports
these activities by improving its safety infrastructure in areas where
33
shooting historically
took place with fewer berms and backstops. The
Club' s current use ofits historical eight acres is not different inkind from
the use that historically occurredthere.
Next,
the trial court concluded small arms military training
activities that formerly occurred at the Club between 2002 and 2010
constitute a change or enlargement of the use. See CP 4071 - 73, 75 - 80
FOF 71 - 79; COL 8( 2), 25. a . b). Yet, as the trial court found, firearm
qualification exercises occurred at the Club in the
early
1990s. CP 4071
FOF 72).
The Navy training from2002 to 2010 took place only on the
pistol range and on no more than nine days per month. CP 4072 ( FOF
75).
This limited activity is consistent with the Club' s historical mission
of
supporting
national defense. CP 4054( FOF 6). This is an important
interest in Kitsap County and the Bremerton area, where it is common
knowledge that the U.S. Navy has had a robust presence for decades, and
Navy
personnel are members ofthe
community. The Navy training was
part ofthe Club' s normal use as a shootingrange. See VT 2291: 12 -23.
M oreover, official U.S. Navy training ceased at the Club in the
Spring
of2010. CP 4073 ( FOF 79). Such discontinued activities cannot
establish a change of use.
See Rosema v. City ofSeattle, 166 Wn. App.
293, 301, 269 P. 3d 393 ( 2012) (
affirming nonconforming use of
residential duplex where former unlawful use as triplex had ceased).
34
Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 ( 1993); see also Strand
v. State, 16 Wn.2d 107, 115, 132 P. 2d 1011 ( 1943) (
defining equitable
estoppel).
For estoppel to affect a " governmental" action, as opposed to a
proprietary"
one, it must also be shown that ( 2) manifest injustice will
occur without estoppel and( 1) government functions will not be impaired.
Id. at 743 -44. Each element must be proven with " clear, cogent, and
convincing
evidence."
Id. at 744. Case law regarding estoppel against the
government suggests it is highly fact dependent.
The first element of estoppel,
inconsistency, can arise from a
difference betweenthe government' s current claims and a prior resolution
regarding
land.
See Finch, 74 Wn.2d at 165 ( resolution conveying title
estopped
city
from
disputing party'
s title to
property);
see also Green
County
v. Tennessee Eastern Elec. Co., 40 F.2d 184( 6th Cir. 1930)
resolution authorizing dam estopped county fromclaiming damages for
raisingofdam).
Inconsistency can also arise from a government' s attempt to
repudiate its prior approval or commitment regarding a land use. Spokane,
6 Wash. at 521.
InSpokane, a party authorized by ordinance to construct
a railway didso inan.unauthorizedlocation. Id. at 522, 524. The city was
estopped from
seeking
to remove the track because " the municipal
58
Likewise, the isolated instance in 2009 when U.S.
Navy personnel
practiced shooting froma military "Humvee" does not constitute a change
or enlargement ofuse because it is within the Club' s chartered purpose
and there is no finding or evidence that it was not a historic use or that it
will ever happenagain. See CP 4072 (FOF 78).
The fact that the Club allowed use of its facility for firearms
training by the U.S. Navy and private firearminstructors ( for a nominal
fee) also fails toprove a change or enlargement ofthe use. See CP 4071-
72 ( FOF 73 -75).
When a Propertyhosting a nonconforming use is rented
to a non- owner, the " decisive
inquiry"
is not the nature of the entities
involved but whether there is a " common use that the various operations
share." Hendgen v. Clackamas
County,
836 P.2d 1369, 1371 (
Or. App.
1992) (
finding
off - premises business rented
property
for same
nonconforminguse as former on- premises business).
The Club has a
long history
of firearm
training.
VT 1875: 2 -20,
1877: 3 - 21; VT 1917: 16- 1918: 25. From 1976 to 1980, the Club trained
over a thousand" students how to shoot firearms, including .44 magnum
pistols and shotguns. VT 1917: 16- 1919: 21. This historical use of the
Club is comparable to the Navy' s small arms military training between
2002 and 2010. VT 1320: 5 - 12, 1321: 23- 1323: 7, 1327: 21- 1328: 6,
2027: 20 - 2031: 7. Administration of firearmtraining by a third party, as
35
opposed to the Club, does not change the use to something other than a
shootingrange.
Next, the trial court concluded there was a change or enlargement
ofuse because of increased hours of
shooting
at the Club. Yet the trial
court specifically found shootinghistorically occurred at the Club" during
daylight hours." CP 4059 ( FOF 30).
One ofthe County' s witnesses and
staunch Club opponent, Terry Allison, has livedadjacent tothe Club since
1988.
He testified that in 1988, hunters shot at the Club as early as 6 am,
which is around daybreak in September. VT 1027: 24- 1028: 14, 1096: 10-
18. Daylight can last until as late as 10: 15 pm. VT 1068: 18- 21. M r.
Allisonspecifically recalled shooting as late as 9 pm, though he could not
recall whether the Club allowed
shooting
until 10 pm. VT 1068: 28 -25,
1069: 7-9. Ken Roberts,
a County Sherriff Deputy, who has been a
member of the Club since 1975, confirmed that prior to 1993 the Club
allowed
shooting
until 10 pm. VT 1872: 14- 19, 1895: 6-8. At the time of
trial, the Club' s hours were from 7 am to 10 pm. CP 4073 ( FOF
80). These hours are within its historical hours of operation and not a
change or enlargement ofthe use.
The trial court found hours of active shooting, historically, were
considerably
fewer" than
they
are
today.
CP 4073 ( FOF 80). The trial
court found that as of 1993
shooting
occurred at the
Property " only
36
occasionally,
and
usually
on weekends and
during
the fall " sight -in"
season for hunters. CP 4059 ( FOF 30).
Similarly, the trial court found
that in the
early
1990s
shooting
sounds fromthe range were "
typically
audible for short times on weekends, or early inthe morning duringhunter
sight -in season( September) "; and hours of active
shooting were
considerably
fewer." CP 4073 ( FOF 80). These vague findings are not
supported by substantial evidence inthe record because the County' s only
evidence is circumstantial testimony regarding perceptions of audible
sounds from a distance.
M oreover, any increase in the total hours of
active shooting throughout the year or the number of shooters at any
particular time is a lawful intensification.
Next, the trial court concluded the Club expanded and changed its
use when it installed stormwater culverts across the rifle range and
constructed ofberms in and to the north of
shooting Bay
4 in 2006. CP
4065 -69 ( FOF 52 -57, 64-65); CP 4081 - 82 ( COL 28, 30). There was no
finding that this work expanded the Club' s geographic area of active use
beyond its historical eight acres. This work didnot change the kindofuse
or activities at the
Property. It simply routed water away frompotential
spent metals toprotect the nearby wetlandfromcontamination.
Next, the trial court concluded the Club' s clearing and grading in
2005 ofan area referred to as the " 300 meter range" was an expansion of
37
its use of the
Property.
CP 4081 ( COL 27). This area was outside the
historical eight acres, though it hadbeenharvested for timber in 1991. CP
4063 ( FOF 41).
When the County became aware of the Club' s
exploratory
work in 2005 and issued an oral "
stop work" order, the Club
complied with the order. CP 4063 ( FOF 41 - 42).
The County then
informed the Club it was required to obtain a CUP because the work had
expanded the Club' s land use. CP 4063 -64( FOF 44). In response, the
Club abandoned its plans to
develop
the 300 meter range. CP 4064(FOF
46). The Club attempted toreforest the area in2007 but the new trees did
not survive. Id. (FOF48).
Ifthe Club had developed and used the area as a 300 -meter range,
it would have constituted an expansion of the geographic footprint ofthe
Club' s use. Because the Club abandoned the idea, however, there was no
expansion of the use or need for a CUP.
At trial, chief building official
Jeff Rowe confirmed this when he suggested an expansion of a
nonconforming
use couldbe brought " back into
nonconformity,"
and then
agreed that " if the Club were to withdraw and retract this alleged
expansionthen it wouldnot need a conditional use permit[.]" VT 278: 17-
279: 15. This was consistent with the
County'
s position in 2006, as
described by its code compliance supervisor who met with the Club
38
regardingthe proposed 300 meter range before the project was abandoned.
VT 590: 7- 22; VT 591: 13- 17, 596: 22- 597: 6, 604: 1- 11; CP 2371 - 72.
The testimony of M r. Rowe and the County' s code compliance
supervisor is contrary to the trial court' s decision and consistent with
decisions
by
other courts.
For example, inRichland Township v. Prodex,
Inc., 634 A.2d 756( Pa. Com. 1993), the trial court determined both the
scope of the expansion and the scope of the lawful nonconforming use
right.
The court did not abruptly terminate the entire use or require it to
obtaina conditional use permit for its lawful operations tocontinue. Id. It
only
required the use to retract. On appeal, the court affirmed this
approach, and modified the trial court' s order toallow a 20%expansionin
area ofuse basedon a local ordinance. Id. at 766.
M r.
Rowe' s testimony highlights the trial court' s errors in
terminating the Club' s nonconforming use and failing to identify the
extent to which the Club has
lawfully
intensified.
According to M r.
Rowe, if there were some expansion, change, or enlargement, the Club
would have the option to retract or return to nonconformity without a
conditional use permit. The trial court' s decision forecloses this option
and forces the Club toobtaina CUP inorder for any operations, however,
minimal, to continue. This makes all the difference in the world to the
Club for tworeasons. First, there is no guarantee that the Club can obtain
39
a CUP. VT 283: 1 - 17.
Second, the CUP process would give the County
carte - blanche to micromanage
virtually every
aspect ofthe Clubwithout
the safeguards provided by civil rules of procedure and injunction law.
See KCC 17.421. 030.B (authorizingbroadrange ofCUP conditions).
In sum, the trial court' s decision regarding expansion, change, and
enlargement of the Club' s nonconforming shooting range use is riddled
with errors. This Court should either decide on this record that the Club
has not unlawfully expanded, changed, or enlarged, or it should remand
the case with instructions for the trial court to determine the precise
contours ofwhat the Club can and cannot dowithinits nonconforminguse
right andits constitutional right ofintensification.
E.
The Trial Court Erred in Denying the Club' s Breach of
Contract CounterclaimandAccordandSatisfactionDefense.
The trial court denied the Club' s affirmative defense ofaccord and
satisfaction and its closely related counterclaim for breach of contract.
The affirmative defense alleges the 2009 Deed settled their potential
disputes regarding the Club' s nonconforming use and prior potential code
violations, and affirmed the Club' s right to operate and improve its
facilities within the historical
eight acres without jeopardizing its
nonconforming
use right or
obtaining
a conditional use permit. CP 1778-
80. The Club' s related counterclaim for breach of contract sought a
40
judgment declaring the Club' s rights under the Deed and declaring the
extent to which the County' s claims in this lawsuit are in breach of the
Deed. CP 1778 -79; 83 - 84.
The trial court erred by not granting the
Club' s affirmativedefense and counterclaim.
The trial court concluded the Deed: " cannot be read as more than a
contract
transferring Property
fromthe
County
to the KRRC." CP 4083
COL 36); see also CP 4087-89 ( Deed). This conclusion is incorrect
because the Deed contains numerous provisions regarding the rights and
obligations ofthe parties. See
generally,
CP 4087-89 ( 1J2 -4). It is not a
mere conveyance ofthe Property. Id.
The trial court also concluded the language in the Deed does not
prohibit or have any effect on the County' s enforcement ofits ordinances
against the Club. CP 4083 ( COL 36). This conclusionis inerror because
it: (1) it fails to give effect to the plain language of the " improvement"
clause in paragraph three of the Deed; ( 2) it fails to give effect to the
County' s implied duty to allow the Club to provide public access as
required
by
paragraph four ofthe Deed; ( 3) it fails to give effect to the
County' s implied duty not to frustrate the purpose ofthe contract, which
was to allow the Club to continue operating its shooting range at the
Property;
and( 4) it disregards extrinsic evidence that the Deed was
41
intended to clarify the Club' s nonconforming use rights and allow the
Club tocontinue as it then existed.
The trial court' s first error was in failingto effectuate the plain
language of the " improvement" clause in paragraph three of the Deed.
Washington follows the "
objective manifestation theory of contracts."
Hearst Communications, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503,
115 P. 3d 262, 267( 2005). Under this approach, the parties' intent is
determined
by
the " objective manifestations ofthe agreement,"
and not by
the " unexpressed subjective intent of the parties." Id. The goal is to
determine " the reasonable
meaning
ofthe words used." Id.
Paragraph three ofthe Deed grants the Club the right to" upgrade
or improve" its facilities withinits historical eight acres solongas they are
consistent with management practices for a modern
shooting
range." CP
4089 ( 3).
With this clause, the parties identifiedthe controllingstandard
by which the Club' s improvements within its historical eight acres would
be judged and permitted to continue. The clause does not require
improvements within the eight acres to comply with the rules and
regulations of
Kitsap County
for development of private land. This
omission must be given effect because the next clause,
regarding
expansion,"
expressly provides that such rules and regulations would
apply
to
any "
expansionbeyondthe historical eight (8) acres[.]" Id. Ifthe
42
parties intended landdevelopment ordinances to apply to improvements
within the eight acres, the Deed would have said so. Instead, it says the
Club may improve the eight acres consistent with management practices
for a modernshootingrange.
The County never alleged, and the trial court did not find, that any
of the Club' s improvements violated the "
modern shooting range"
standard. Instead,
the trial court applied County land development
ordinances tofindcertainpast, unpermitted improvements withinthe eight
acres are unlawful. See CP 4060 -69 ( FOF 33 -36, 40- 46, 49 -51, 54- 56,
62 -64); CP 4079 -83 ( COL 24-34). The trial court should have
effectuated the Deed by holding the improvements were authorized by the
Deed, do not require any land development permits, and do not constitute
an unlawful expansion, change of use, or enlargement of the
nonconforming
use. The trial court should have enforced the
improvement clause
by dismissing
the
County'
s
claims regarding
improvements withinthe eight acres.
The trial court' s second error was in failing to give effect to the
County' s implied duty to allow the Club to perform the public access
provision in the Deed.
Washington courts recognize an implied duty in
every contract for each party to allow the other to performits contractual
obligations, i.e.,
a party cannot take action toprevent or interfere with the
43
other' s performance of the contract. E.
g., Long
v. T - H
Trucking
Co., 4
Wn.
App.
922, 926, 486 P. 2d 300 ( 1971); G.O. Geyen v. Time Oil Co., 46
Wn.2d 457, 460- 61, 282 P. 2d 287( 1955);
M cCartney v. Glassford, 1
Wash. 579, 20 P. 423 ( 1889).
G.O. Geyen is
particularly
instructive.
There, an oil company
leased property with a requirement that the lessor maintain a service
stationthere. G.O. Geyen, 46 Wn.2d at 460.
The oil company controlled
the products the lessee was permitted to sell. Id. When the lessee agreed
tomaintainthe service station, it was depending on the company todeliver
its products.
After entering into the lease, the oil company stopped
delivery ofitsproducts, preventing the lessee frommaintainingthe station.
Id. at 459. The court held there was an implied obligation for the
company todeliver the products because this was necessary for the lessee
to maintain the station as the lease required. Id. at 460 -61. The oil
company breached the contract by preventing the lessee fromperforming
its side ofthe contract, and it was liable for damages.
13
Paragraph four ofthe Deed requires the Club toimmediately offer
public access to its existing shooting range at the Property being sold by
the
County.
CP 4089 ( 4).
At the time of the Deed, the County
13
See also,
M cCartney
v. Glassford, 1 Wash. 579, 582, 20 P. 423 ( 1889) ( " Ifthe act to
be done by the party binding himself can only be done upon a corresponding act being
done or allowedby the other party, an obligationby the latter to do, or allowtobe done,
the act or things necessary for the completionofthe contract, will be necessary implied").
44
controlled whether the Club would be allowed to continue or whether its
existing facilities and operations would be subject to an enforcement
action.
The Club was depending on the County' s approval of its then
existing facilities and operations when it agreed toprovide public access.
After the parties entered intothe Deed, the County brought suit toshut the
Club downbasedon alleged violationsthat existed at the timeofthe Deed.
The suit constitutes breach ofcontract because it seeks toprevent the Club
from
performing
its side ofthe contract.
The trial court erred in failingto
recognize this.
The trial court' s third error was in failing to give effect to the
County' s implied duty not to frustrate the Deed' s purpose ofallowing the
Club to continue operating its nonconforming shooting range as it existed
withinthe historical eight acres ofactive use. This purpose is evident in
the publicaccess provisiondiscussed above and inthe confinement clause
of paragraph three. CP 4088 -4089. That clause provides that the Club
shall confine its active shootingrange facilities onthe property consistent
with its historical use ofapproximately eight ( 8) acres ofactive shooting
ranges[.]" Id.
This language expresses the manifest understanding
between the parties that the Club was purchasing the Property for the
purpose ofcontinuing to operate its nonconforming shooting range within
its historical eight acres.
45
When a sale is for a particular purpose, the seller implies that what
is sold is suitable for that purpose, and bears the risk ifit is not. Tiegs v.
Boise Cascade
Corp.,
83 Wn.
App.
411, 426, 922 P. 2d 115 ( 1996) affd
sub nom. Tiegs v. Watts, 135 Wn.2d 1, 954 P. 2d 877( 1998). In Tiegs, the
Washington Court of Appeals held the defendant breached a lease that
required him to supply water because the water turned out to be
contaminated.
The seller had an impliedobligationto supply clean water
because the contract showed the water was intended to be used for
irrigation. 83 Wn.
App.
at 414. The defendant did not know the water
was contaminated when he delivered it. Nevertheless, the seller bore the
risk that what he soldwas not suitable for its intendedpurpose.
The Deed shows its purpose was to allow the Club to continue
operating
its
nonconforming shooting
range within the eight acres. As
seller, the County impliedthe Property was suitable for that purpose, and
bears the risk ifit is not. The purpose ofthe Deed shouldbe given effect
by dismissing the County' s claims and declaring that the County must
allow the Club to continue operating its nonconforming shooting range
as it existed on the date of the Deedwithin the eight
acres.
Alternatively, if the Property is not suitable for its intended
purpose,
the County should be held liable for the Club' s defense,
46
abatement, and other costs related to Property' s inability to satisfy the
purpose ofthe sale.
The trial court' s fourth error was in disregarding the extrinsic
evidence affirming the plain meaning and implication of the provisions
discussed above. Washingtoncontract law allows extrinsicevidence tobe
used to show the
meaning
of "specificwords and terms used," though not
to show an intention independent ofthe contract or to vary or modify the
written words. Hearst, 154 Wn.2d at 493.
Extrinsic evidence may be
used to show: ( 1) the subject matter and objective ofthe contract; ( 2) the
circumstances
surrounding
its formation; ( 3) subsequent acts and conduct
of the parties; and( 4) the reasonableness of the parties' respective
interpretations. Id. at 502. In Chevalier v. Woempner, this Court reversed
a trial court' s erroneous contract interpretation that was contrary to the
words in the contract and the extrinsic evidence ofits intended meaning.
290 P. 3d 1031, 1036( Wash. Ct.
App.
2012). The Court should do the
same here.
The trial court found that the 2009 Deed came about because the
County did not want ownership ofthe Property but had to take it in order
to acquire desirable parkland fromthe State. CP 4056-57( FOF 16- 17,
19).
The County commissioners first initiated the idea ofthe Club taking
title tothe property and approached the Club with that idea. VT 2842: 11
47
25.
Retaining ownership was not an option for the County because its
appraiser found a $
2 -3 million environmental cleanup might be required
at the
Property.
CP 4057( FOF 21).
The Deed reflects the County' s
strategy for avoiding this liability by selling the Property to the Club
subject to the Club' s agreement to indemnify the County against any
environmental
liability
at the
Property.
CP 4088 -89 ( 1). The trial court
found the Club' s interest inthe Deed was motivatedby concern that ifthe
County took ownership of the Property it might cancel the Club' s long-
termlease. CP 4057(FOF 18).
As this finding suggests, the Club' s only
interest inthe Property was so that it could continue operating there, and
the
County
knew this.
This explains why the Club' s attorney drafted the
improvement" clause inparagraph three, which the County accepted. VT
2881: 25- 2882: 2; Ex. 400 at 1 - 2.
The parties'
motivations for entering into the Deed are also
reflected inthe County' s resolution, approved ina publicmeeting on M ay
11, 2009, with representatives ofthe Club present. Ex. 477 at 3 - 4.
14
The
resolution is,
by
definition, an expression of the
County'
s intent. See
Baker v. Lake
City
Sewer Dist., 30 Wn.2d 510, 518, 191 P. 2d 844( 1948)
a resolution]
is simply an expression of the opinion or mind of the
14 The resolutionfor the Deed isunsigned because it was approved verbally by the Board
of
County
Commissioners
during
a public
meeting. Ex. 552 at 6( documenting
commissioners' unanimous verbal adoption ofresolution);
Ex. 555 ( audio recording of
meeting).
48
official
body concerning
some particular itemofbusiness"). It contains
the followingfindingofthe County regarding the intent ofthe Deed:
WHEREAS the County finds that it is in the public
interest for firearmsafety as well as in the best economic
interest of the County to provide that KRRC continue to
operate with full control over the property on which it is
located[.]"
Ex. 477 at 3 ( resolution) (emphasis added). The resolution also contains
statements supporting the Club' s existing facilities and operation, its prior
use for military training, and the public benefits of allowing the Club to
continue. Id.
Duringthe negotiations leadinguptothe resolutionandDeed, both
parties were aware that some individuals within the County had taken
issue with the Club in the past.
In 2005, the Club was exploring the
possibility ofdeveloping a 300 meter riflerange outside its historical eight
acres. CP 4063 ( FOF 40).
The Club had already done some exploratory
work in this area when the County issued a stop work order and alleged
the Club would need a conditional use permit ( CUP) and other permits,
including
a site development
activity
permit ( SDAP) if it wanted to
continue with its plans. CP 4063 ( FOF 40 -44).
The. County had never
taken action to substantiate those allegations, but the potential for dispute
was knowntobothparties.
49
The parties were also both aware, prior to the Deed, that
landowners were making allegations against the Club regarding noise,
safety, nonconforming use violations, and unpermitted site development:
In 2009 the County hosted public meetings regarding its plans for the
Property
and adjacent parkland owned
by
the State. Club representatives
attended those meetings, where landowners publicly alleged excessive
noise, unpermitted land development, and unsafe facilities at the Club.
VT 1850: 13- 1853: 21, 2213: 1 - 20. At least one ofthe Commissioners was
informedby the Club' s neighbor, Terry Allison, that he took issue withthe
Club' s noise,
safety,
and perceived expansion and change of use. VT
1091: 3 - 25. The County hadbeen aware ofsome ofthese allegations since
as
early
as 2005.
VT 420: 25 -427, 432: 22 -437: 13 ( testimony of County
code compliance supervisor Steve M ount describing complaints as of
2005). M oreover,
M ount expressly informed the County' s employee
charged with
negotiating
the Deed, M att Keough, that there were
unresolved zoning enforcement issues regarding clearing ofthe property
and expansion of Club activities, and that he was concerned about the
Club' s hours ofoperation, noise, and
safety.
VT 2827: 3 - 9, 2828: 19 -23,
2829: 19- 2831: 3.
Not only was the County fully aware of the potential issues
surrounding the Property, but it had substantial knowledge ofthe Property
50
and full access to it prior to
entering
into the Deed. In 2005, personnel
fromthe County Department of Community Development visited the
Property
on at least three occasions. CP 4064(FOF 47). On at least one
ofthese visits, County personnel walked through the developed shooting
areas en route to and fromthe 300 meter range area. Id. In 2009, the
County' s appraiser visited and inspected the Property prior to the
executionofthe Deed. CP 4057-58 ( FOF21).
Keough also visited and inspected the Property prior to the
execution ofthe Deed.
VT 2078: 6- 2079: 8; 2851: 2- 2852: 14. The County
was given full access to the
Property
prior to the Deed. Id. Keough
himselftestifiedthere were discussions betweenthe parties about what the
Club could continue to do on each portion of the Property upon taking
title. VT 2827: 3 - 9, 2828: 19 -23, 2845: 22- 2646: 13. Keough knew the
Club was concerned about the long termviability ofits operations at the
Property.
VT 2833: 8- 13.
He knew it was concerned about its existing
facilities and its ability torenovate them. VT 2844: 21 - 24.
Keough testified that in his discussions with the Club it was
understood that part of the
Property
was an" active range," the active
range with its"
existing
facilities" was" expected to continue," and
expansion" or "
going
beyond the
existing
facilities" was" an item for
future discussion" that " was
going
to require
County
review." VT
51
2827: 3 - 9, 2828: 19 -23, 2845: 22- 2846: 13.
Keough was very clear that
when he referred to the Club' s" active range"
he was referring to it as it
existed`under the lease ofthe DNR,"
which was in effect up until the Club
took title tothe
Property.
VT 2848: 18- 2849: 3; CP 4055 ( FOF 11); Ex. 136
lease).
The parties were clearly negotiating over the Club' s ability to
continue as it thenexisted, andnot as it existedat someearlier time.
The trial court foundthe unpermitted improvements at issue inthis
case occurredbetweenapproximately 1996 and M ay 2010. CP 4061 ( FOF
33).
These improvements include shooting bays and culverts within the
Club' s historical eight acres. CP 4059 -61, 65- 66( FOF 29, 33, 52 -54);
see Exs. 438. With the exception ofone bay created between April 2009
and M ay 2010, each ofthese improvements was found to have pre -dated
the Deed.
The trial court found the County did not know about the
culverts until after the Deed. CP 4067( FOF 57). This was in error
because the Club informed the County DCDabout the culvert work before
it took place,
and there is no evidence of any inquiry or objection
whatsoever fromthe
County.
VT 2049: 1- 2054: 8, Ex. 416 at 2 -3.
The County was familiar withthe Club and the potential for further
dispute when Commissioner Josh Brown entered a letter into the public
record stating that the Commissioners had already granted assurance " that
the Club and its improvements were not at odds with the County' s long-
52
term interest in the property, and would not jeopardize future planning
efforts." Ex 293.
This shows the Deed was a landuse policy decisionby
the County to reject the allegations that had been raised regarding the
Club' s
compatibility
with the
community.
See also, Exs. 330, 332, 336,
293, 405 ( additional extrinsic evidence of Commissioners' intent to
support Club as it existed).
Considering the compelling extrinsic evidence regarding the intent
of the Deed, the trial court erred when it found, "[
t]he only evidence
produced at trial to discern the County' s intent at the time of the 2009
Bargain and Sale Deed was the deed itself." CP 4058 ( FOF 26). The
extrinsic evidence consistently and overwhelmingly supports the Club' s
interpretation of the Deed, which is that it was intended to clarify the
Club' s nonconforming use rights and allow the Club to continue as it
existed.
The trial court also erredwhen it found the minutes and recordings
of the BOCC meetings regarding the Deed do not reveal any intent to
settle disputed claims or land use status, and that the parties did not
negotiate for resolution of such issues. CP 4058 ( FOF 23, 25). This
finding is in error because the evidence discussed above shows the parties
were aware oflandowner allegations and prior issues raisedby the County
that could threaten the Club' s future and resolved to clarify the Club' s
53
rights and allow it tocontinue. The parties never discussed a " release" or
settlement" inthose express terms because there were no pending claims
or adversarial allegations by the County that wouldhave causedthe Club' s
volunteer
attorney
to negotiate an express release or settlement. See VT
2886: 16- 2888: 4; 2890: 6- 2893: 2; 2893: 13 - 2894: 4. On the contrary, the
County was voicing strong public support for the Club, and the parties'
negotiating
agents discussed the land sale as a " win/win" situation and a
partnership"
between the parties. VT 2869: 5 - 15; 2872: 24- 2873: 24; see
also VT 2096: 3 - 22. The Deed and other evidence manifest the mutual
desire to secure the Club' s future for the public benefit by clarifying the
Club' s nonconforminguse rights and agreeing it hadthe right tocontinue.
Another error in the trial court' s analysis is apparent in its
conclusion that the Washington Open Public M eetings Act ( "OPM A "),
42.30 RCW, somehow limits the legal effect of the Deed. CP 4083 -84.
As shown above, the resolution and Deed were public actions in full
compliance with OPM A.
County
commissioners have " broad general
powers" to" have the care ofthe
county property ...
and, in the name of
the county toprosecute and defend all actions for and against the county,
and such other powers as are or
may
be conferred
by
law." Finch v.
M atthews, 74 Wn.2d 161, 173, 443 P. 2d 833, 841 ( 1968); RCW
36.32. 120(2). The power to prosecute and defend includes the power to
54
reasonably
settle or compromise disputes.
There is no finding that the
Commissioners acted
unreasonably
or exceeded
their authority in
supporting
the Club and
entering
into the Deed.
The County has never
sought rescission of the Deed and the Club is not seeking to enforce a
separate contract entered into secretly behind closed doors without public
notice or
opportunity
for comment. OPM A is not a rule of contract
interpretation. The only dispute is over the legal effect ofthe Deed.
Although the Prosecutor' s office bringing this case may not have
been incontrol ofthe County' s decisiontoenter intothe Deed, the County
and public received the benefit of that decision and the County must be
bound
by
that decisionin this action. The intent ofthe Deed should be
given effect by reversing the trial court' s judgment for the County and
directing the Court to enter judgment in favor ofthe Club approving all
conditions and activities existing as ofthe 2009 Deed, declaring that the
Club' s improvements within its historical eight acres must be judged by
whether they are consistent with management standards at a modern
shooting
range,
and remanding for a determination of the County' s
liability tothe Club forbreach ofcontract.
F. The Club' s Estoppel Defense ShouldBe Granted.
Like the Club' s accord and satisfaction defense and contract
counterclaim, the Club' s affirmative defense ofestoppel is rooted in the
55
Deed. CP 1780 -81, 4087-92 ( Deed). The trial court denied the Club' s
estoppel defense without making any conclusions of law regarding
estoppel.
This is troubling because the estoppel defense was a focal point
ofthe case and the trial court denied the County' s pre -trial motiontostrike
it fromthe pleadings. CP 1608 ( order); CP 1452 -81 ( motion). The trial
court may have denied the defense on the grounds that the County' s
allegations in this case are not inconsistent with what the County did or
said to induce the Club to enter into the Deed. See FOF 24. There are
numerous inconsistencies, however, and the estoppel defense does not
require the Club to show that the County had already made an official
decisiontosue the Club whenthe Deed was executed. Evenwithout such
a blatant misrepresentation, the record presents a compelling case for
estoppel.
The estoppel defense should have been granted because the Club
entered into the Deed in reliance on the words and conduct ofthe County.
The County led the Club toreasonably believe the Deed was intended to
secure the Club' s right to continue and improve its nonconforming use
within the eight acres. The
County
now denies this intent.
The County
led the Club to reasonably believe the County had made a final
determination that the Club' s existing facilities and operations were
56
lawful.
Shockingly, the County failed to disclose the internal allegations
ofits chiefenforcement officer that the Clubwas anunlawful nuisance.
The Club would not have executed the Deed as it was written ifit
had known what the County is now saying regarding the intent of the
Deed, the lack ofa final determinationby the County, and the allegations
ofits chiefenforcement officer.
As a result ofthe Deed and the County' s
inconsistent positions, the Club' s existence, future, and control of its
operations are in
jeopardy. This manifest injustice can be corrected by
reversing the trial court' s decision and grantingthe estoppel defense. This
will improve the way the government functions and increase trust in the
government by creating anincentive for it to act more honestly and openly
with its citizens.
Government entities have been subject to equitable estoppel in
property
and land use disputes for over 100 years.
See Spokane St. Ry. v.
Spokane Falls ( "Spokane "), 6 Wash. 521, 33 P. 1072 ( 1893) (
estopping
city
from
denying
prior approval of
railway).
Estoppel consists of the
following
elements: "(
1) a party' s admission, statement or act inconsistent
with its later claim; ( 2)
action by another party in reliance on the first
party' s act, statement or admission; and( 3) injury that wouldresult tothe
relying party fromallowing the first party to contradict or repudiate the
prior act, statement or admission."
Kramarevcky v. Dept. ofSocial and
57
officers, fromthe mayor down" knew the company was acting inreliance
on the
city'
s approval, and" no objection was made." Id. at 524. The
city'
s claimwas inconsistent withits prior approval.
ls
Silence can be inconsistent with a party' s later assertion of an
adverse claim,
especially
when"
honesty
and fair
dealing"
demand
disclosure ofinformation. BoardofRegents ofthe Univ. ofWashington v.
City of
Seattle ( "BRUW "), 108 Wn.2d 545, 741 P. 2d 11 ( 1987) (
estopping
state from challenging condemnation award to which it had previously
acquiesced); Bunn v. Walch, 54 Wn.2d 457, 463, 465, 342 P.2d 211
1959) (
estopping lienholder fromobjecting to auction and disbursement
ofproceeds towhich it hadpreviously acquiesced).
The law requires a property seller to disclose any known material
fact not apparent tothe buyer. Sorrell v. Young, 6 Wn. App. 220, 225, 491
P. 2d 1312 ( 1971). A material fact is
any " information that substantially
adversely
affects the value ofthe
property ... or operates to materially
impair or defeat the purpose of the transaction." RCW 18. 86.010(9);
accord Sorrell, 6 Wn.
App.
at 225.
In Sorrell, the seller had a duty to
15 See also, State ex rel. Shannon v. Sponburgh, 66 Wn.2d 135, 143 - 44, 401 P.2d 635
1965) (
holding liquor control board could be estopped from objecting to change of
location it had
previously
approved);
City ofCharlestown Advisory Planning Commn. v.
KBJ, LLC, 879 N.E.2d 599 ( Ind.
App.
2008) (
estopping city fromenforcing development
ordinance against land use it had
previously
approved). A change in" political winds"
doesnot justify repudiation ofa prior approval. Id. at 603.
59
disclose the presence of fill at an undeveloped property because the fact
was not apparent tothe buyer. Id.
Knowledge of a code violation is a material fact that must be
disclosed
by
a seller with superior knowledge ofthe violation. Barder v.
M cClung,
93 Cal.
App.
2d 692, 694, 697, 209 P. 2d 808 ( 1949). InBarder,
the seller had not been cited for an unpermitted dwelling unit over the
garage, but there was evidence the seller knew it was unlawful. 93 Cal.
App.
2d 692, 694, 697, 209 P. 2d 808 ( 1949). The buyer knew the
apartment was there, but did not know it was unlawful. Id. at 697. The
seller had a legal
duty
to disclose that information. Id. The information
affected the value ofthe property and undermined the purpose ofthe sale
because the seller told the buyer she would be able to rent the unlawful
apartment for income. Id. at 694; accord, M orgera v. Chiappardi,
CV990172388S, 2003 WL22705753, * 3 ( Conn. Super. Ct. Oct. 28, 2003)
affd, 87 Conn.
App.
903, 864 A.2d 885 ( 2005) (
holding seller had duty to
disclose knowledge of alleged code violations and fraudulently induced
buyer tobelieve city approved ofproperties).
Here,
the County' s present claims are inconsistent with its
resolutionregardingthe intent ofthe Deed, its approvals and commitments
to the Club, its nondisclosure ofthe allegations ofits chief enforcement
officer, and its other words and conduct that induced the Club toenter into
60
the Deed. See supra, Part E(
regarding
manifest intent of Deed). The
evidence regarding the County' s nondisclosure of the allegations of its
chiefenforcement officer, Steve M ount, isparticularly compelling.
Prior to the Deed, the County DCD' s chief enforcement officer
communicated to the Commissioners and the County' s Deed negotiator the
same allegations oflanduse violations andpublicnuisance that formthe bulk
of the
County'
s case. VT 2827: 3 - 9, 2828: 19 -23, 2829: 19- 2831: 3
negotiator); VT 415: 17-25; 574: 9 -576: 3 ( compliance supervisor) The Club
was never informed ofthese facts; it was never informed that anyone from
the County believed there were any code violations at the Property; it was
never informed that anyone fromthe County believed it tobe in violation of
law. VT 2887: 1- 7, 2891: 18- 25; VT 2090: 4- 15, 2095: 6- 10, 2097: 2- 7.
The
County'
s silence
regarding
the adverse claims of its
enforcement officer is inconsistent with the County' s later assertion ofthe
claims inthis lawsuit.
Although the Club knew landowners were making
these types of allegations,
it is a completely different matter for the
allegations to be made by the County' s own land use enforcement
authority.
The Commissioners and Keough knew about M ount' s
allegations. Keough knew the Club was concerned about potential land
use disputes and its
ability
to continue. The Commissioners made
numerous statements approving ofthe Club and confirming the Deed was
61
intended to allow the Club to continue. Yet the Commissioners and
Keough never disclosed their knowledge that the
County'
s chief
enforcement officer was allegingthe Club tobe anunlawful nuisance.
Similarly, there is no evidence the County disclosed to the Club
that the Deed was not intended to secure its right tocontinue and improve
its
nonconforming
use.
There is no evidence the County disclosed to the
Club that its approval ofthe Club was not a final determination. There is
no evidence the County disclosed its position that the Club could be sued
for its existing facilities and operations and shut down at any time after
giving
the
County
the benefits of the Deed.
The County' s astounding
silence regarding these material facts is inconsistent withits present case.
This evidence shows the
County'
s words, actions, and
nondisclosure constitute a conscious concealment of material facts, and
not a simple mistake.
But even ifthe County had been suffering from
some mistaken understanding when it dealt withthe Club, estoppel would
be appropriate. A government cannot correct an earlier mistake to the
detriment ofthose whoreliedon it.
See Kramarevcky, 122 Wn.2d at 743;
Strand v. State, 16 Wn.2d 107, 119 -20, 132 P. 23d 1011 ( 1943) (
holding
actual knowledge
of the state' s officials of the falsity of their
representations" is not necessary).
62
In Strand, the state sold public land as" attached tidelands" and
later approved a subsequent owner' s title. Id. at 108-09. Later, the state
decided the property actually included detached tidelands or islands, the
conveyance was a mistake, and the land shouldbe returned tothe state for
use as public
shooting
grounds. Id. at 109. The court held such a mistake
could not defeat estoppel because the state, as property seller, had a " duty
and
responsibility
to investigate"
before selling the property as attached
tidelands, and if it was mistaken the landowner who had relied on that
mistake shouldnot bear the consequences. Id. at 120 -21.
The second element, reliance, is provenby showing a party would
have acted differently ifthe opposing party had always acted consistently
with the allegations in its lawsuit. Reliance
may
result from
communications that create a predictable
misunderstanding.
Harbor Air
Serv.,
Inc. v. Board ofTax Appeals, 88 Wn.2d 359, 367, 569 P. 2d 1145
1977) (
estopping department of revenue where it could have easily
prevented
misunderstanding). A citizen may rely on the acts of a
government subdivision that are within its" general powers. . . even
though such powers have been exercised in an irregular and unauthorized
manner[.]" Finch, 74 Wn.2d at 171. Such powers include the broad
power of
county
commissioners to sell
property
and settle disputes. Id. at
166, 172 - 73; see also Franklin County v. Carstens, 68 Wash. 176, 122
63
P.999 ( 1912), overruled in part on other grounds
by
Gustaveson v.
Dwyer, 83 Wash. 303, 310, 145 P. 458, 460 ( 1915). A citizenis entitledto
rely on government officials and assume they know what they are doing.
Strandv. 16 Wn.2dat 119.
Here, ifthe Club is mistaken about the intent and contractual effect
ofthe Deed, thenthe words and conduct ofthe County predictably created
that
misunderstanding. The County' s position in this lawsuit is that the
Deed was intended to reserve and not affect the County' s right to bring
enforcement action against the Club' s existing facilities and operations.
Yet the County never communicated this to the Club and its words and
actions led the Club tobelieve the exact opposite.
There is no question that the Club negotiated and executed the
Deed inrelianceon the County' s words and conduct that were inconsistent
with its present allegations. For example, the Club' s attorney testified that
ifthe Club hadknownthere was" any kindofpossibility that the Club was
facing
potential loss of its land use status," she " would have said
absolutely
don' t sign[ the Deed]." VT 2893: 13- 2894: 4. As she
explained, the Club could not accept the Deed' s indemnity provision
unless the Deed also secured the Club' s nonconforming use right because
ifthe shooting range were shut down the Property would be a hazardous
waste site. VT 2894: 7- 2895: 9.
In that event, the indemnity provision
64
would expose the Club to the multi - million dollar cleanup liability found
by
the
County'
s appraiser. CP 4087-88( Deed
indemnity
provision); CP
4057-58( FOF 21);
VT 2840: 3- 2841: 8( testimony ofCounty negotiating
agent M att Keough).
The Club' s Executive Officer confirmed that ifthe Club had any
idea its legality was a lingering issue within the County, the Club would
not have agreed tothe indemnity provision. VT 2097: 8- 16. He explained
the Club' s decisiontosignthe Deed and take on the potential liabilities at
the Property as follows:
The totality of it, again, gave us control to be able to
operate in a way that we had which had been forward
thinking.
We have an environmental program we had a
good grasp of, we were going to be able to limit better
certain liabilities that had been a concern to us in the past
such as the ability to fence the property offtokeep people
fromwandering inadvertently intoan active shootingrange
area. Andwith the knowledge that we' ve hadinbeing able
toruna facility safely andcleanly, we felt that it was worth
the risk as it were."
VT 2098: 6-19; see alsoVT 2092: 3 - 20; 2090: 4-23.
The evidence clearly
proves the Club agreed to the indemnity provision in reliance on the
specific words and conduct of the
County.
See also VT 2097: 2 -7;
2098: 6- 19, 2222: 18- 2223: 8( testimony that Club agreed to public access
provisionand later spent approximately $40,000 improvingthe Property in
reliance onspecificwords and conduct ofthe County).
65
Further evidence shows the internal allegations of the County' s
code compliance supervisor were unknown to the Club and that it
reasonably believed the Deed would secure its right to continue operating
and
improving
its
nonconforming shooting
range. In 2005 the Club was
informed it would need a CUP and other permits toproceed with the 300
meter range project it was
exploring.
CP 4063 -64(FOF 44). It was also
informed that if the Club abandoned the project and retracted to its
historical eight acres it would not need a CUP. VT 278: 17- 279: 15,
590: 7- 22, 591: 13 - 17, 596: 22 - 597: 6, 604: 1 - 11; CP 2371 - 72. The Club
attempted to resolve the issue by abandoning its development of the 300
meter range and
replanting
trees. VT 2041: 24- 2043: 14. In 2007 the
Club confirmed the owner of the Property, DNR, was satisfied with the
replanting,
and shared that information with the
County.
VT 2043: 9 - 14.
The County never informed the Club a permit was still required, never
inspected the
replanting,
and never issued a notice of violation. VT
2043: 9 - 14.
Based on the County' s conduct and DNR' s satisfaction, the
Club
reasonably
believed it had resolved the issue. VT 2038: 10 - 2041: 6;
2041: 24- 2043: 14(
describing
interactions between Club and code
compliance supervisor Steve M ount).
The third element, injury, is satisfied where a landowner takes title
and improves a property in reliance on the government' s words and
66
actions. See Finch, 74 Wn.2d at 175; Strand, 16 Wn.2d 123 - 24. It is also
satisfied where "
the whimof an administrative body could bankrupt an
applicant who acted in good faith in reliance upon a solemn written
commitment." State ex rel. Shannon v. Sponburgh, 66 Wn.2d at 143. As
discussed above, the Club signed the Deed and took title tothe Property in
reliance on the
County'
s words and conduct. VT 2097: 2- 2098: 19,
2090: 4-23, 2092: 3 - 20, 2893: 13- 2894: 4. It alsospent tens ofthousands of
dollars
improving
the
Property.
VT 2222: 18- 2223: 8. The Club' s
existence, future, and control over its shooting range are now injeopardy.
See 283: 1 - 17( issuance of CUP not guaranteed); KCC 17.421. 030.B
authorizing
broad range of CUP conditions).
The element of injury is
satisfied.
M oreover, the greatest injury may be that the County' s inequitable
conduct induced the Club to accept the Deed as drafted without giving it
fair notice and an opportunity tonegotiate over the specific allegations the
County
was
concealing. The County now argues the Deed gives the
County all ofthe benefits it sought but omitsthe benefits the Club thought
it was
receiving. This is precisely the type of injury equitable estoppel
prevents. See Finch, 74Wn.2dat 175 ( applying estoppel toprevent unjust
enrichment of
city). The primary elements ofinconsistency, reliance, and
injury are clearly proveninthis case.
67
To the extent the Club seeks to estop the County fromacting in a
governmental" as opposed to"
proprietary" capacity,
the additional
elements of " manifest injustice" and" impairment of government
functions" must be analyzed. Kramarevcky, 122 Wn.2d at 743 -44. Inthis
case, the Club' s estoppel defense applies to both types of conduct by the
County.
At minimum, the Club seeks toestop the County fromdenyingthat
the Deed was intended to secure the Club' s right to continue and improve
its
nonconforming shooting
range.
The Deed was a proprietary action
because the government "
acts in its proprietary capacity when it
undertakes to dispose of public lands." Strand, 16 Wn.2d at 117.
Therefore, the County can be estopped in its proprietary capacity from
denying
the intent of the Deed.
As a result, the County' s enforcement
action would be a breach ofthe Deed but it wouldonly suffer proprietary
consequences.
The enforcement action could continue but the County
wouldbe declared liable for any resulting damages, including defense and
abatement costs.
Failing to estop the County in its proprietary capacity
would give the County an unfair advantage in the marketplace by
immunizing
it fromthe legal consequences ofits
proprietary
actions. Id.
at 118 ( holding government can be estopped where it "puts itself on the
plane ofthe ordinary citizen").
68
The estoppel defense also applies ifsome or all of the County' s
actions are governmental.
The defense seeks dismissal of the County' s
claims alleging code violations and a public nuisance, which are brought
in its governmental
capacity. The County should be estopped in every
capacity and its claims should be dismissed because this will prevent
manifest injustice to the Club while
improving, and not impairing,
government functions.
M anifest injustice" exists if there is harm and injustice to the
party seeking
estoppel.
Kramarevcky,
122 Wn.2d at 748. The manifest
injustice in this case is evident in the numerous facts discussed above. In
particular, the County' s concealment and nondisclosure ofmaterial facts,
especially the allegations ofits code compliance official, show the County
was not
dealing
with the Club
honestly
and in good faith. M oreover,
considering the County' s numerous assurances that induced the Club to
enter into the Deed, it engaged in both active deception and passive
concealment. As inFinch, it is"
unlikely
that
any
state offacts... would
impose more manifest injustice" than what the County seeks and the trial
court decidedinthis case. 74Wn.2dat 175.
Inevaluating estoppel, Washington courts holdthat " initsbusiness
relations with individuals the state must not expect more favorable
treatment than is fair between men." Finch, 74 Wn.2d at 161. Some
69
courts even require the government to act with "a more scrupulous regard
tojustice than belongs tothe
ordinary
person." Strand, 16 Wn.2d at 107.
This is because the government exists to secure " impartial justice" and
must " not be heard torepudiate its solemnagreement, reliedonby another
tohis detriment." Id.
As evident, Washington courts have improved the government by
holding it to the same standards of fairness that apply between private
citizens.
They suggest government functions will be enhancedstill further
by applying
the highest and most scrupulous standards ofjustice. This
reasoning
prevailed in
Kramarevcky,
where estoppel prevented the
government fromrecovering public assistance benefits paid by mistake.
122 Wn.2d at 749. The court emphasized that the mistake arose fromthe
government' s error alone, and estoppel would improve governmental
functions by providing an incentive for the government to avoid such
mistakes inthe future. Id.
The County' s intentional nondisclosure and misleading statements
create an evenmore compelling case for estoppel than the mistake at issue
inKramarevcky. As inthat case, estoppel will improve and not impair the
County' s governmental functions because it will prevent the County from
repeating
the type ofconduct exhibitedhere. It will create an incentive for
the County to fully and honestly disclose material information about
70
public lands before
selling
themto its citizens.
Creating an incentive for
the County to act more honestly and fairly inthe future will only improve
the
way
it functions.
The benefit ofgranting the Club' s estoppel defense
in this case far outweighs the benefit of allowing the type of manifest
injusticepresent here. 122 Wn.2d at 749.
The Club' s defense of equitable estoppel should be granted. The
County should be estopped from denying any duty to disclose the
allegations ofits code compliance supervisor prior to selling the Property
to the Club.
The County should be estopped fromdenying that the Deed
was intended to secure the Club' s right to continue and improve its
nonconforming shooting
range.
The County should be estopped from
denying that it made a final determination that the Club' s facilities and
operations were lawful at the time of the Deed.
The County' s claims
shouldbe dismissedand the Club' s breach ofcontract counterclaimshould
be granted.
G. The Injunctions and Warrant of Abatement Should Be
ReversedandSet Aside.
After abruptly terminatingthe Club' s nonconforming use right, the
trial court issued two injunctions.
The first prohibits all shooting at the
Club without a CUP. CP 4085. The second injunction prohibits: ( 1) the
use of automatic firearms; ( 2) the use of rifles larger than" nominal . 30
71
caliber "; (
3) the use of exploding targets and cannons; and( 4) shooting
before 9 amor after 7
pm.
CP 4085. These injunctions were in error
because there is no legal basis to terminate any aspect of the Club' s
nonconforminguse right or holdany ofits facilities or activities unlawful,
for the reasons discussed above. In addition, even ifsome aspect ofthe
Club were unlawful, the injunctions would be arbitrary, overbroad, and
not appropriately tailored to address specific harms without prohibiting
reasonable activities.
Injunctive relief cannot be upheld if it is based upon untenable
grounds,
manifestly
unreasonable, or
arbitrary.
Waremart, Inc. v.
Progressive Campaigns, Inc., 139 Wn.2d 623, 628, 989 P. 2d 524, 526
1999).
A decision is manifestly unreasonable if "it is outside the range of
acceptable choices, given the facts and the applicable legal standard[.]" In
re M arriage
of
Horner, 151 Wn.2d 884, 894, 93 P.3d 124( 2004). It is
baseduponuntenable reasons if "it is based on anincorrect standard or the
facts do not meet the requirements of the correct standard." Id. The
terms, scopes, or duration ofan injunction are proper grounds for appeal.
Kingv. Riveland, 125 Wn.2d500, 504, 886 P. 2d 160, 163 ( 1994).
A
trial court "
must precisely tailor a permanent injunction to
prevent a specific harm[.]"
DeLong v. Parmelee, 157 Wn. App. 119, 236
P.3d 936(2010). Theorder must " set forth the reasons for its issuance," it
72
must be " specific in terms," and must " describe in reasonable detail .. .
the act or acts sought tobe restrained." CR 65( d).
Appellate courts routinely reverse and modify an injunction that is
excessively broad and not precisely tailored to prevent a specific harm.
For instance, inChambers v. City ofM ount Vernon, 11 Wn. App. 357, 361
1974), the Washington Court of Appeals reversed and modified an
injunctionenjoining " any quarry operations" because the alleged nuisance
conditions could have been remedied without completely shutting down
the quarry. Id. at 361. 16
Under Washingtonlaw, an injunctionmust be narrowly tailoredto
prevent a specificharm, and may only prohibit activities tothe extent they
create a nuisance. In addition, courts are reluctant to require more
mitigation of a nuisance than is practicable. E.
g.,
Payne v. Johnson, 20
Wash.2d24, 145 P. 2d 552 ( 1944).
At least one court has applied these principles to reverse an
excessive injunction of a
shooting
range.
In Christensen v. Hilltop
Sportsman Club, Inc., the Ohio Court of Appeals reversed an injunction
prohibiting all shooting at a rifle club after neighbors brought a nuisance
action
alleging
excessive noise. 573 N.E.2d 1183 ( Ohio
App.
1990). The
prohibitionwas" excessive and far out ofproportion" because it prevented
16
See also, M athewson v. Primeau, 64 Wn.2d 929, 395 P.2d 183 ( 1964); State v.
Stubblefield, 36 Wn2d 664, 220 P.2d305 ( 1950).
73
the club' s" reasonable use" of its
property
at " reasonable times." Id. at
1186. The court reversed with instructions for the injunction to prohibit
nomore than is requiredtoeliminate the nuisance." Id.
Here, it appears the trial court issued the first injunction, shutting
the Club down unless it obtains a CUP, on the grounds that the Club' s
nonconforming
use right is terminated. Because the Club retains its
nonconforming use right, the zoningordinance does not apply and a CUP
is not necessary.
The trial court may have also issued the first injunction to abate
common law public nuisance activities or violations of code or statute.
See CP 4073, 4077-78, 4081 - 85 ( FOF 67- 69, 84- 85, COL 16- 20, 27-
32). However, even if some aspect of the Club were held a nuisance,
expansion, change of use, enlargement, or site permitting violation, the
injunctionwouldbe arbitrary, excessive, and inappropriately tailored.
Ifany aspect ofthe Club were a nuisance, the harmwouldhave to
be abated
by
an
appropriately
tailored injunction. With respect to sound,
that would require an objective standard to identify when the sound from
the Club is and is not a nuisance.
With respect to safety, that would
require a clear standard to identify when and under what conditions an
activity at the Club is and is not so unsafe as to constitute a nuisance. The
trial court found no such standards here. The injunction would also have
74
to allow the Club to continue with any activities that do not cause a
specific harm,
including
its historical activities. After all, the Club
operated for decades without allegations ofa noise or safety nuisance, so it
is acceptable under some circumstances. The trial court' s injunction do
not satisfy these tailoringrequirements.
Likewise, the first injunction is not narrowly tailored to abate an
unlawful expansion, change of use, or enlargement of the Club' s
nonconforming
use. The injunction prohibits even those activities
lawfully withinthe Club' s nonconforming use right and right to intensify.
To be appropriately tailored, the injunction would have to allow those
lawful activities, but the trial court didnot determine what they are.
The trial court' s findings of site permitting violations at the Club
should be reversed
by
the Deed and estoppel defenses.
But even ifthey
were allowed to stand, they would fail to support the excessive scope of
injunction. These violations relate to specific improvements in specific
parts of the
Property.
The remainder of the Club' s improvements are
lawful, and shutting the Club down over site development permits would
cause the Club irreparable harm.
By analogy, a person is not evicted from
her home
simply
because of an unpermitted electrical outlet. A tailored
injunction would either order the Club to obtain the permits or, at worst,
75
prohibit the use ofonly those improvements that require permits, pending
abatement.
The requirement of a CUP does not change the disproportionate
nature ofthe first injunction.
A CUP would give the County broadpower
to limit, control, and condition the Club' s activities without any narrow
tailoring
requirement. The first injunctionmust be reversed. Ifthere were
some unlawful condition or activity that had to be enjoined, the case
would have to be remanded with instructions for the trial court to
determine clear standards for distinguishing between lawful and unlawful
activities andimprovements.
In addition, the trial court' s second injunction prohibiting specific
activities should be reversed because it is both arbitrary and excessive.
There is no findingor conclusion that the activities enjoinedare nuisances
per se. These activities are not nuisances per se because no ordinance or
statute prohibits them outright. See RCW 9.41. 190; KCC 10.24.090;
WAC 173 -60 -050.
The only possible grounds for these specific
injunctions is that they are nuisances in fact that cannot possibly be
allowed at the
Property
without
creating
a nuisance.
Yet, no such finding
of fact or conclusion of law exists in this case. Like the first injunction
shutting the Club down, these injunctions are not based on any clear
standard determined by the trial court for distinguishing between nuisance
76
and non- nuisance activities.
They only reflect the trial court' s arbitrary
opinions, while corroborating the court' s statements at trial suggesting a
lack of personal
familiarity
with firearms. See VT 254: 16-25; 521: 6
523: 1; 254: 16-25; 521: 6- 523: 1; 522: 24- 523: 1.
To illustrate, the fourth injunction limits the Club' s hours of
operation to 9 am to 7 pm. CP 4085. At the time of trial, the Club
allowed shooting from7 amto 10 pm, which corresponds with the hours
in which shooting ranges are exempt fromstate noise regulations and the
County'
s noise ordinance. 2045: 1 - 5; WAC 173- 60- 050( 1)( b); KCC
10.28.050(2).
There is no finding to suggest shooting from7- 9 amor 7-
10 pmconstitutes a
safety
nuisance. The trial court concluded to allow
shooting
from7 amto 10 pmconstituted" expanded hours," which have
increased noise emanating from the Club and contributed to the noise
nuisance. CP 4074(FOF 85); CP 4078 (COL21). Yet the trial court also
found the Club historically allowed shooting during daylight hours, which
are fromas
early
as 6 amtoas late as 10: 15 pm. CP 4059 (FOF 30).
By
prohibiting all shooting during early and late hours, the trial court fails to
distinguishbetween an amount ofshootingthat was historically acceptable
withinthe community and an amount ofshootingthat is unacceptable.
The same is true for the other specific injunctions because they
prohibit activities that historically existed at the Club, yet they are not
77
based on
any
clear standard.
Each ofthe specific injunctions is arbitrary
and excessive.
Finally, the trial court erred by granting the County a warrant of
abatement. CP 4085. Pursuant to RCW 7. 48.010 and KCC 17.530.030,
the County may seek a warrant authorizing it to abate a specific code
violation at a
property.
If there is no violation, there is no basis for a
warrant of abatement. Even if there were a violation, however, the
warrant of abatement would be in error because it fails to set forth the
conditions ofabatement in
any
specificterms. CP 4085 ( "the detail of [the
warrant of abatement] shall be determined... at a later
hearing ").
The
trial court' s failure to craft specific relief again reflects the County' s
inability toestablish any clear standards todistinguish between lawful and
unlawful activities and improvements at the Property. Because there is no
basis for the warrant of abatement and it fails to authorize any specific
abatement measures, it shouldbe set aside along with the injunctions.
VI. CONCLUSION
For the reasons stated above, the Club respectfully requests entry
ofan order:
1.
Reversing the trial court' s declaratory judgment terminating the
Club' s nonconforminguse right;
78
2.
Reversing the trial court' s judgment declaring the Club a public
nuisance, and declaringit is not a nuisance;
3.
Reversing every aspect of the trial court' s injunction and warrant
of abatement and either permanently setting them aside or
remandingwith instructions for the trial court tonarrowly tailor the
injunction and warrant ofabatement to reflect clear and objective
standards and toprevent specifically identifiedharms.
DATED: M arch 8, 2013
CHENOWETH LAW GROUP, P.0
BrianD. Cheno o. 25877
OfAttorneysforAppellant
KitsapRifleandRevolver Club
510 SW Fifth Ave., FifthFloor
Portland, Oregon97204
503) 221 -795
79
APPENDIX
Pursuant to RAP Rule 10.3( 8) and 10.4(c),
Appellant Kitsap Rifle
and Revolver Club
respectfully
submits the attached Appendix. The
Appendix consists ofKitsap County Code provisions effective at the time
oftrial and citedherein:
KCC 2. 116( "Civil Enforcement ");
KCC 9.56( "PublicNuisances");
KCC 10.24( "Weapons");
KCC 10.28 ( "Noise ");
KCC 17. 110 ( excerpts ofTitle 17, Chapter 110" Definitions ");
KCC 17.381 ( " AllowedUses");
KCC 17.420 ( "Administrative Conditional Use Permit");
KCC 17.421 ( "
HearingExaminer Conditional Use Permit");
KCC 17.455 ( "Interpretations and Exceptions ");
KCC 17.460 ( "
Nonconforming Uses and Structures");
KCC 17. 530 (" Enforcement").
Chapter 2. 116 CIVILENFORCEM ENT
Page 1 of7
Chapter 2.116
CIVIL ENFORCEM ENT
Sections:
2. 116.010 Purpose.
2. 116.020
Applicability.
2. 116.030 Enforcement.
2, 116.040 Violations
InvestigationsEvidence.
2.116.050 Notice of infractionService.
2.116.060 Notice of infractionFormContents.
2. 116.070 Notice of infraction
FilingHearing in district court.
2.116.080 Notice of infraction
Determination infraction committed.
2.116.090 Notice of infractionResponse
requesting hearing Failure to respond or
appear Order to set aside.
2.116.
104
Notice Failure to signNonappearance
Failure to satisfy penalty,
2. 116. 110
Representation by attorney.
2. 116. 120 Infraction
Hearing
Procedure Burden of proof - Order Appeal.
2. 116. 130 Infraction
Explanation of mitigating circumstances.
2. 116. 140
M onetary
penalties Restitution.
2. 116. 150 Order of court Civil nature M odification of
penalty Community
service.
2. 116. 160
Costs and attorney' s fees.
2.116. 170
Severability.
2. 116.010 Purpose.
The ordinance codified in this chapter provides the procedure for the investigation of
suspected violations and enforcement of other ordinances.
Ord. 209 (1997) 1, 1997)
2. 116.020 Applicability.
a)
This chapter shall apply tothe enforcement of Kitsap County ordinancesand codes,
including those related tobuilding, zoning, environmental health and safety, and quality
oflife, which specifically reference this chapter or the ordinance codified in this chapter.
b)
Violations of the. applicable codes shall be corrected under the provisions of this
chapter, in coordination with existing ordinance and code provisions.
Ord. 209 (1997) 2, 1997)
2. 116.030 Enforcement.
Only an authorizedofficial may enforce theprovisions of this chapter. For purposes of
this chapter, an authorized official is defined as any one of the following:
a)
The Kitsap County sheriff and his or her authorized representatives shall have the
authority
toenforce the provisions ofthis chapter;
Chapter 2. 116 CIVILENFORCEM ENT Page 2 of7
b)
The director ofthe KitsapCounty department of community development and his or
her authorized representatives shall have the authority to enforce the provisions of this
chapter,
c)
The Kitsap County prosecuting attorney shall have authority to enforce the
provisions of this chapter and may institute any legal proceedings necessary to enforce
the provisions ofthis chapter; and
d)
The KitsapCounty board ofcommissioners may designate other persons to
administer the provisions of this chapter.
Ord. 209 (1997) 3, 1997)
2.116.040 Violations Investigations Evidence.
An authorized official may investigate alleged or apparent violations of this chapter. In the
performance ofthat investigation, an authorized official may enter upon any landand
make examinations and surveys, provided that such entries, examinations and surveys
donot damage or interfere with the use ofthe land by those persons lawfully entitled to
the possessionthereof. Upon request of the authorized official, the person allegedly or
apparently in violation of this chapter shall provide information identifying themselves.
a) Violations
Failure to Provide Information Identifying Person. Willful refusal to
provide information identifying a person as required by this sectionis a misdemeanor.
Ord. 209 (1997)
4, 1997)
2. 116.050 Notice of infractionService.
Whenever an authorized official determines that a violation has occurred or is occurring,
he or she may pursue reasonable attempts tosecure voluntary corrections, failing which
he or she may issue a notice of infraction. An authorized official may issue a notice of
infraction if the authorized official reasonably believesthat the provisions of this chapter
have beenviolated. A notice of infraction may be served either by:
a)
The authorized official serving the notice of infraction on the person namedin the
notice of infraction at the time of issuance; or
b)
The authorized official filing the notice of infraction with the court, in which case the
court shall have the notice served either personally or by mail, postage prepaid, on the
person named in the notice of infraction at his or her address.
Ord. 209 (1997) 5, 1997)
2.116.060 Notice of infractionFormContents.
The notice of infraction shall include the following:
A. A statement that the notice represents a. determination that the infraction has been
committed by the person named in the notice and that the determination shall be final
unless contested as provided in this chapter;
B. A statement that the infraction is a noncriminal offense for which imprisonment shall
Chapter 2. 116 CIVILENFORCEM ENT
Page 3 of7
not be imposed as a sanction;
C.
A statement of the specificinfraction for which the notice was issued;
D.
A statement that monetary penalties as set forth belowhave been establishedfor
each infraction;
E.
A statement of the options provided in this chapter for responding to the notice and
the procedures necessary to exercise these options;
F.
A statement that at any hearing to contest the determinationthat the county has the
burden of proving by a preponderance of the evidence, that the infractionwas committed;
and that the person may subpoena witnesses, including the authorized official who
issued and servedthe notice of infraction;
G.
A statement, which the person whohas been served with the notice of infraction
shall sign, that the personpromises to respond to the notice ofinfraction in one ofthe
ways provided in this chapter;
H.
A statement that refusal to sign the infraction as directed in subsection(G) of this
section is a misdemeanor and may be punished by a fine and/or imprisonment injail; and
I.
A statement that a person' sfailure to respond to a notice of infraction as promised is
a misdemeanor and may be punishable by a fine and/or imprisonment in jail.
Ord. 209 (1997) 6, 1997)
2.116.070 Notice of infraction
Filing Hearing in district court.
A notice of infraction shall be filed in district court withinforty-eight hours of issuance,
excluding Saturdays, Sundays, and holidays. KitsapCounty District Court shall have
jurisdiction to hear and determine these matters.
Ord. 209 (1997) 7, 1997)
2.116.080 Notice of infractionDetermination infraction committed.
Unless contested in accordance withthis chapter, the notice of infraction represents a
determination that the persontowhomthe notice was issued committed the infraction.
Ord. 209 ( 1997) , 8, 1997)
2. 116.090 Notice of infractionResponse
requesting hearing
Failure torespond
or appear Order toset aside.
A.
A personwhoreceives a notice of infraction shall respond tothe notice as provided
in this sectionwithin fifteen days of the date the notice was served.
B.
If the person named in the notice of infraction does not contest the determination,
the personshall respond by completing the appropriate portion of the notice of infraction
and submitting it, either by mail or in person, tothe court specified on the notice. A check
or money order in the amount of the penalty prescribed for the infraction must be
submittedwith the response. When a response which does not contest the determination
Chapter 2. 116CIVILENFORCEM ENT Page 6 of7
penalty. All violations of this chapter shall be denominated Class 1 civil infractions. The
maximumpenalty and default amount for a Class 1 civil infraction shall be twohundred
fifty dollars, not including statutory assessments.
B.
Whenever a monetary penalty is imposed by a court under this chapter it is
immediately payable. If the person is unable to pay at that time, the court may grant an
extension of the period oftime in which the penalty may be paid. If the penalty is not paid
on or before the time established for payments the court may proceed tocollect the
penalty in the same manner as other civil judgments and may notify the prosecuting
attorney ofthe failure to pay. The court shall alsonotify the department ofthe failure to
pay the penalty, and the department shall not issuetheperson any future permits for any
work until the monetary penalty has been paid.
C.
The court may alsoorder a person found to have committed a civil infraction to
make restitution.
Ord.. 209 ( 1997) 14, 1997)
2. 116.150 Order of court Civil nature - M odification of
penalty Community
service.
A. An order entered after the receipt of a responsewhich does not contest the
determination, or after it has been established at a hearing that the civil infraction was
committed, or after a hearing for the purpose of explaining mitigating circumstances is
civil in nature.
B.
The court may waive, reduce, or suspend the monetary penalty prescribed for the
civil infraction. If the court determines that a person has insufficient funds to pay the
monetary penalty, the court may order performance of a number of hours of community
service in lieu of a monetary penalty, at the rate ofthe thenstate minimumwage per
hour.
Ord. 209 ( 1997) 15, 1997)
2. 416.160 Costs and attorney' s fees.
A.
Each party in a civil infraction case is responsible for costs incurred by that party, but
the court may assess witness fees against a nonprevailing respondent. Attorney' s fees
may be awarded to either party in a civil infraction case.
Ord. 209 ( 1997) 16, 1997)
2.116.170 Severability.
If any section, subsection, clause or phrase of the ordinance codified in this chapter or
amendment thereto, or its application to any person or circumstance, is held by a court of
competent jurisdiction to be invalid, the remainder or application to other persons, or
circumstances shall not be affected.
Ord. 209 (1997) 17, 1997)
Chapter 2. 116 CIVILENFORCEM ENT
Page 7 of7
This page of the KitsapCounty Code is current through
Ordinance 461 ( 2010),
passed September 13, 2010.
Disclaimer: The Clerk of the Board' s Office has the official
version of the KitsapCounty Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County Website:
http: / /www. kitsapgov.com/.
County
Telephone: ( 360) 337-4870
Code
Publishing Company
Chapter 9.56 PUBLIC NUISANCES
Page 1 of14
Sections:
9.56.010
9.56.020
9. 56.030
9. 56.035
9. 56.040
9.56.050
9.56.060
9.56.070
9.56.080
9.56.090
9.56. 100
9. 56.110
Chapter 9. 56
PUBLIC NUISANCES
Purpose.
Definitions.
Voluntary correction.
Prerequisite to notice of abatement.
Notice of abatement.
Hearing before the violations hearing examiner.
Abatement by the county.
Environmental mitigation agreement for outdoor storage ofjunk motor
vehicles on private property.
Additional enforcement procedures.
Removal of personal property and/or solid waste placed onto public
access.
Conflicts.
Representation by attomey.
9.56.010 Purpose.
Thischapter provides for the abatement ofconditions which constitute a publicnuisance
where premises, structures, vehicles, or PORT 70,58, 71, 233, 128, 187 ent of community
development, or the director of the department of publicworks, or their authorized
designee, or any designee of the board of county commissioners, empowered to enforce
a county ordinance orregulation.
5)
Department" means the department of community development (DCD).
6)
Development" means the erection, alteration, enlargement, demolition,
maintenance or use of any structure or the alteration or use of any land above, at or
below ground or water level, and all acts authorized by a county regulation.
7) "
Emergency" means a situationwhich, in the opinion of the director, requires
immediate action to prevent or eliminate an immediate threat tothe health or safety
ofpersons or property.
8) "
Hulk hauler" means any person whodeals in vehicles for the sole purpose of
transporting and/or selling themtoa licensed motor vehicle wrecker or scrap
processor in substantially the same formin which they are obtained. A hulk hauler
may not sell second-hand vehicle parts to anyone other than a licensed vehicle
wrecker or scrap processor, except for those parts specifically enumerated in RCW
46.79.020(2), which may be sold toa licensed motor vehicle wrecker or disposed of
at a publicfacility forwaste disposal.
9) "
Junk motor vehicle" means a motor vehicle meeting at least three of the
following
requirements:
Chapter 9.56 PUBLIC NUISANCES Page 2 of14
a) Is threeyears old or older;
b)
Isextensively damaged, such damage including, but not limited to, any of the
following: a buildupof debris that obstructs use, brokenwindow or windshield; missing
wheels, tires, tail/headlights, or bumpers; missing or nonfunctional motor or transmission;
or body damage;
c)
Is apparently inoperable; or
d)
Hasan approximate fair market value equal only to the approximate value of the
scrap in it.
Junk motor vehicle" does not include a vehicle or part thereof that is stored entirely
within a building in a lawful manner where it is not visible fromthe street or other publicor
private property, or a vehicle or part thereof that is stored or parked in a lawful manner on
private property in connectionwith the business of a licensed dismantler or licensed
vehicle dealer and is fenced according to the requirements of RCW 46.80. 130;
10) " Nuisance," "violation" or "nuisance violation" means:
a)
Doing an act, omitting to performany act or duty, or permitting or allowing any act or
omission, which significantly affects, injures, or endangers the comfort, repose, health or
safety of others, is unreasonably offensive to the senses, or obstructs or interferes with
the free use of property so as tointerfere with or disrupt the free use of that property by
any lawful owner or occupant; or
b)
The existence of any of the following conditions:
1)
Premises containingvisible accumulations of trash, junk, litter, boxes, discarded
lumber, ashes, bottles, boxes, building materialswhich are not properly stored or neatly
piled, cans, concrete, crates, empty barrels, dead animals or animal waste, glass, tires,
mattressesor bedding, white goods, numerous pieces of broken or discarded furniture
and furnishings, old appliances or equipment or any parts thereof, iron or other scrap
metal, packing cases or material, plaster, plastic, rags, wire, yard waste or debris,
salvage materials or other similar materials, except that kept in garbage cans or
containers maintained for regular collection. Nothing in this subsection shall prevent the
temporary retentionof waste in approved, covered receptacles;
ii)
Dangerous structures including, but not limitedto, any dangerous, decaying,
unkempt, falling or damaged dwelling, or other structure;
iii)
Any junk motor vehicle including, but not limited to, any junk motor vehicle, vehicle
hulk or any part thereof which is wrecked, inoperable or abandoned, or any disassembled
trailer, house trailer, or part thereof, with one exception:
A)
A property may store uptosix junk motor vehicles on private property
outside of a permitted
building, only
if the vehicles are: (
i) completely
screened(as defined in Section 9. 56.020(17)) by sight - obscuring fence or
natural vegetationtothe satisfaction ofthe director (a covering such as a
tarp
over the vehicles will not constitute an acceptable visual barrier); or (ii)
Chapter 9. 56 PUBLIC NUISANCES
Page 3 of14
more than two- hundredandfifty feet away fromall property lines. The
owner of any such screenedjunk motor vehicle(s) must successfully enter
into an environmental mitigation agreement with the department regarding
the property where such vehicle(s) will be located or stored, as set forth in
Section 9. 56.070. Any junk motor vehicle that is stored outside on private
property without an approved environmental mitigation agreement with the
department shall be considered a nuisance in accordance with this
chapter,
iv)
Vehicle Tots without approved land use;
v)
Attractive Nuisances. Any nuisance defined in this subsection which is detrimental
to children, whether in or on a building, on the premises of a building, or upon an
unoccupied lot, which is left in any place exposed or accessible to children including, but
not limited to, unused or abandoned refrigerators, freezers, or other large appliances or
equipment or any parts thereof; abandoned motor vehicles; any structurally unsound or
unsafe fence or edifice; any unsecured orabandoned excavation, pit, well, cistern,
storage tank or shaft; and any lumber, trash, debris or vegetationwhich may prove a
hazard for minors;
vi)
Obstructions tothe publicright -of -way including, but not limited to, use of property
abutting a publicstreet or sidewalk or use ofa public street or sidewalk which causes any
obstruction totraffic or toopen access tothe streets or sidewalks. This subsection shall
not apply to events, parades, or the use of the streets or public rights-of -way when
authorized by the county. This section includes the existence ofdrainage ontoor over
any sidewalk, street or public right -of -way, and the existence ofany debris or plant
growth on sidewalks adjacent to any property, and any personal property and/or solid
waste that has been placed onto a publicright -of -way pursuant to a court - ordered
eviction per Title 59 RCW which has not been removed after twenty -four hours;
vii)
Illegal dumping including, but not limited to, dumping of any type by any person on
public or private property -not designated as a legal dump site; and
viii)
Dumping in waterways including, but not limited to, dumping, depositing, placing or
leaving of any garbage, ashes, debris, gravel, earth, rock, stone or other material upon
the banks, channels, beds or bars ofany navigable water, or the felling ofany tree or
trees, sothat the same shall in whole or in part project within the high water bank of any
navigable watercourse, or the casting, placing, depositing or leaving of any logs, roots,
snags, stumps or brush upon the banks or in the bed or channel of any navigable
watercourse, unless otherwise approved by the appropriate governmental agency.
11) " Omission" means a failure to act.
12) "
Person" means any individual, firm, association, partnership, corporation or
any entity, public or private.
13) "
Person responsible for the violation means any person whohas an interest
in or resides on the property where the alleged violation is occurring, whether as
owner, tenant, occupant, or otherwise.
Chapter 9.56PUBLIC NUISANCES Page 4 of14
14) " Repeat violation" means a violation of the same regulation in any location by
the same person, forwhich voluntary compliance previously has been sought or a
notice of abatement has been issued, within the immediately preceding twelve
consecutive month period.
15) "
Scrap" means any manufactured metal or vehicle parts useful only as
material for reprocessing.
16) "
Scrapprocessor" means a licensed establishment that maintains a hydraulic
baler and shears, or a shredder for recycling salvage.
17) " Screened" means not visible fromany portion or elevation of any neighboring
or adjacent public or private property, easement or right -of -way.
18) "
Vehicle" means every device capable of being moved upon a highway and
in, upon, or by which any person or property is or may be transportedor drawn upon
a highway. M otorcycles shall be considered vehicles for the purposes of this
chapter. M opeds and bicycles shall not be considered vehicles for the purposes of
this chapter.
19) " Vehicle lot" means a single tax parcel where more than tenvehicles are
regularly stored without approved land use by the department.
20) " Violation" means a violation that constitutes a nuisance under this chapter for
which a monetary penalty may be imposed as specified in this chapter. Each day or
portion of a day during which a violation occurs or exists is a separate violation.
21) Violations hearing examiner" means a hearing examiner employed by the
Board of County Commissioners and authorized to enforce the provisions of this
chapter.
Ord. 261 ( 2001) 1 ( part), 2001)
9. 56.030 Voluntary correction.
1) Issuance.
a) When the director determines that a violation has occurredor is occurring, he or she
shall attempt tosecure voluntary correction by contacting the person responsible for the
alleged violation and, where possible, explaining the violation and requesting correction.
b)
Voluntary Correction Agreement. The person responsible for the alleged violation
may enter into a voluntary correction agreement with the county, acting through the
director.
i)
Content. The voluntary correction agreement is a contract between the county and
the person responsible for the violation in which such person agrees toabate the alleged
violation within a specified time and according to specified conditions. The voluntary
correction agreement shall include the following:
A) The name and address of the person responsible for the alleged
Chapter 9. 56 PUBLIC NUISANCES
Page 5. of14
violation;
B)
The street address or other descriptionsufficient for identificationof
the building, structure, premises, or land upon or withinwhich the alleged
violation has occurred or is occurring;
C)
A description of the alleged violation and a reference tothe regulation
which has been violated;
D)
The necessary corrective action to be taken, and a date or time by
which correction must be completed;
E)
An agreement by the person responsible for the alleged violation that
the county may enter the property and inspect the premises as may be
necessary todetermine compliance with the voluntary correction
agreement;
F)
An agreement by the person responsible for the allegedviolation that
the county may abate the violation and recover its costs and expenses
including administrative, hearing and removal costs) and/or a monetary
penalty pursuant tothis chapter fromthe person responsible for the alleged
violationif the terms of the voluntary correction agreement are not
satisfied; and
G)
An agreement that by entering intothe voluntary correction
agreement, the person responsible for the alleged violation waives the right
toa hearing before the violations hearing examiner under this chapter or
otherwise, regarding the matter ofthe alleged violation and/or the required
corrective action.
ii)
Right toa Hearing Waived. By entering into a voluntary correctionagreement, the
person responsible for the alleged violation waives the right to a hearing before the
violations hearing examiner under this chapter or otherwise, regarding the matter of the
violation and/or the required corrective action.
iii)
Extension and M odification. The director may grant an extension ofthe time limit for
correctionor a modification of the required corrective action if the person responsible for
the allegedviolation has. shown due diligence and/or substantial progress in correcting
the violation, but unforeseen circumstances have delayed correction under the original
conditions.
iv)
Abatement by the County. The county may abate the allegedviolation in
accordance with Section 9.56.060 if all terms of the voluntary correction agreement are
not met.
v)
Collection of Costs. If all terms of the voluntary correction agreement are not met,
the person responsible for the alleged violation shall be assessed a monetary penalty
commencing on the date set for correction and thereafter, in accordance with Section
9.
56.040(5),
plus all costs and expenses of abatement, as set forth in Section 9.56.060
4) and allowed
by
RCW 35. 80.030.
Chapter 9. 56 PUBLIC NUISANCES Page 6 of14
Ord. 261 ( 2001) 1 ( part), 2001)
9. 56.035 Prerequisite tonotice ofabatement.
Absent conditions which pose an immediate threat tothe public health, safety or welfare
of the environment, the procedures for abatement of conditions constituting a nuisance
pursuant tothis chapter should be utilized by the county only after correction of such
conditions has been attempted through use ofthe civil infraction process, as specified in
Title 17 and Chapter 2. 116 of the Kitsap County Code. Once it has been determined by
the county that correction of such conditions has not been adequately achieved through
use of the civil infraction process, then the county shall proceed with abatement ofsuch
conditions pursuant tothe provisions of this chapter.
Ord. 261 ( 2001) 1 ( part), 2001)
9.56.040 Notice of abatement.
1) Issuance.
a) When the director determines that a violation has occurred or is occurring, and is
unable tosecure voluntary correction pursuant toSection 9.56.030, he or she may issue
a notice of abatement tothe person responsible for the alleged violation.
b)
Under the following circumstances the director may issue a notice of abatement
without having attempted to secure voluntary correction as provided in Section 9.56.030:
i)
When an emergency exists;
ii) When a repeat violation occurs;
iii) When the violation creates a situation or condition which cannot be corrected;
iv) When the person responsible for the violation knew or reasonably should have
known that the actionwas in violation of a county regulation; or
v) When the person responsible for the violation cannot be contacted when reasonable
attempts tocontact the person have failed, or the person refuses tocommunicate or
cooperatewith the county in correcting the alleged violation.
2) Content. The notice of abatement shall include thefollowing:
a) The name and address of the person responsible for the alleged violation;
b) The street address or description sufficient for identification of the building,
structure, premises, or land upon or withinwhich the alleged violation has occurred or is
occurring;
c) A description of the violation and a reference tothe provision(s) of the county
regulation(s) which has been allegedly violated;
d) The required corrective action and.a date and time by which the correction must be
completed and, after which, the county may abate the unlawful condition in accordance
with Section
9.
56.060;
Chapter 9.56 PUBLIC NUISANCES
Page.? of14
e)
The date, time and location of an appeal hearing before the violations hearing
examiner which will be at least twenty, but no more than sixty days fromthe date of the
notice of abatement, unless such date is continued by the violations hearing examiner for
good cause shown;
f)
A statement indicating that the hearing will be canceled and no monetary penalty will
be assessed, if the director approves the completed, required corrective action prior to
the hearing; and
g) .
A statement that the costs and expenses of abatement incurred by the county
pursuant toSection 9.56.060(4), and a monetary penalty in an amount per day for each
violation as specified in subsection(5) of this section, may be assessed against the
persontowhomthe notice of abatement is directed as specified and ordered by the
violations hearing examiner.
3)
Service of Notice. The director shall serve the notice of abatement uponthe
person responsible for the alleged violation, either personally or by mailing a copy of
the notice by certified or registered mail, with a five -day return receipt requested, to
such person at their last known address. If the person responsible for the violation
cannot be personally servedwithin KitsapCounty, and if an address for mailed
service cannot be ascertained, notice shall be served by posting a copy of the
notice of abatement conspicuously on the affected property or structure. Proof of
service shall be made by a written declaration under penalty of perjury executed by
the person effecting the service, declaring the time and date ofservice, the manner .
by which the servicewas made and, if by posting, the facts showing the attempts to
serve the person personally or by mail. If the person responsible for the alleged
violation is a tenant, a copy ofthe notice of abatement shall also be mailed to the
landlord or owner of the property where the alleged violation is occurring. Ifthe
alleged violation involves a junk motor vehicle, notice shall be provided to the last
registered and legal owner of record of said vehicle (unless the vehicle is in such
condition that identification numbers are not available todetermine
ownership),
as
well as tothe property owner of record, as shown on the last equalized assessment
roll.
4)
Extension. Extensions of the time specified in the notice of abatement for
correctionofthe alleged violation may be granted at the discretion of the director or
by order ofthe violations hearing examiner.
5)
M onetary Penalty. The monetary penalty for each violation ofthis chapter is
250: 00 per day or portion thereof.
6)
Continuing Duty to Correct. Payment of a monetary penalty pursuant tothis
chapter does not relieve the person to whomthe notice of abatement was issued of
the duty tocorrect the alleged violation.
7)
Collection of M onetary Penalty.
a)
A monetary penalty imposed pursuant to subsection(5) of this section constitutes a
personal obligation of the person towhomthe notice of abatement is directed. The
Chapter 9. 56 PUBLIC NUISANCES Page 8 of14
monetary penalty must be paid tothe county within ten calendar days fromeither the
date ofmailing of the violations hearing examiner' s decision following a hearing, or the
date ofmailing the violations hearing examiner' s default order ifthe person responsible
for the violation failed to appear for the hearing. Any such monetary penalty also
constitutes a lien against the affected real property, in the manner set forth in Section
9.56.060(6).
b)
The prosecuting attorney is authorized to take appropriate actiontocollect the
monetary penalty.
Ord. 261 ( 2001) 1 ( part), 2001)
9.56.050 Hearing before the violations hearing examiner.
1) Notice. A person towhoma notice of abatement is issued will be scheduled to
appear before the violations hearing examiner not less than twenty, nor more than
sixty calendar days after the notice of abatement is issued. Continuances may be
granted at the discretion of the director, or by the violations hearing examiner for
good cause.
a)
2)
Prior Correction of Violation. The hearing will be canceled and nomonetary
penalty will be assessed, if the director approves the completed required corrective
action prior tothe scheduled hearing.
3)
Procedure. The violations hearing examiner shall conduct a hearing onthe
notice of abatement and alleged violation pursuant to hearing examiner procedures
approved by the board of county commissioners.
Junk M otor Vehicles Placed.or Abandoned on Private Property. If a junk motor .
vehicle is placed or abandoned on private property without the consent of the property
owner, the owner of the property on which the vehicle is located may appear in person at
the hearing or present a written statement in time for consideration at the hearing, and
deny responsibility for the presence of the vehicle on the property with his/her reasons for
denial. If it is determined by the violations hearing examiner that the vehicle was placed
on the property without the consent of the property owner and that he /she has not
subsequently acquiesced in its presence, thenthe costs ofadministration or removal of
the vehicle shall not be assessed against the property upoh which the vehicle is located,
or otherwise collectedfromthe property. owner.
4)
Hearing Decision. At the conclusion of the hearing on the violation, the
violations hearing examiner shall either: (i) affirmthe issuance of the notice of
abatement if he or she determines by a preponderance of the evidence that the
violation exists substantially as stated in the notice of abatement; (ii) dismiss the
notice of abatement and grant the appeal if he or she determines that the violation
does not exist substantially as stated in the notice of abatement; or (iii) modify the
abatement depending on the specifics of the violation. A copy of the violations
hearing examiner' s ruling shall be mailed tothe person found responsible for the
violation, the county, and if the person responsible for the violation is a tenant, to the
landlord or owner of the property where the violation is occurring.
C
Chapter 9.56 PUBLIC NUISANCES
Page 9 of14
5)
M onetary Penalties. The violations hearing examiner may assess monetary
penalties in accordance with Section9. 56.040(5).
a)
The violations hearing examiner has the following options in assessing monetary
penalties:
i)
Assess monetary penalties beginning on the date the notice ofabatement was
issued and thereafter;
ii)
Assess monetary penalties beginning onthe correction date set by the director, or
an alternate correction date set by the violations hearing examiner and thereafter;
iii)
Assess less than the established monetary penalty set forth in Section 9.56.040(5),
based on the criteria of subdivision(5)( b),
below, of this section; or
iv)
Assess no monetary penalties.
b)
In determining the monetary penalty assessment, the violations hearing examiner
shall consider the following factors:
i)
Whether the person towhomthe notice of abatement was issued responded to
attempts tocontact the person, and cooperated to correct the violation;
ii)
Whether the person failed toappear at the hearing;
iii)
Whether the violation was a repeat violation;
iv)
Whether the person showeddue diligence and/or substantial progress in correcting
the violation', and
v)
Any other relevant factors.
c)
The violations hearing examiner may double the monetary penalty schedule ifthe
violation was a repeat violation. In determining the amount of the monetary penalty for
repeat violations, the violations hearing examiner shall consider the factors set forth in
subdivision(5)( b), above, ofthis section.
6)
Failure toAppear. If the person towhomthe notice of abatement was issued
fails to appear at the scheduled hearing, the violations hearing examiner will enter
an order of default with findings pursuant tosubsection(4) of this section and
assess the appropriate monetary penalty pursuant tosubsection(5) of this section.
The county may enforce the violations hearing examiner' s order and recover all
related expenses, including attorney fees, plus the costs ofthe hearing and any
monetary penalty fromthe person towhomthe notice of abatement was issued. A
copy of the order of default shall be mailed tothe person towhomthe notice of
abatement was issued and against whomthe default order was entered, the county,
and if the personfound responsible for the violation is a tenant, to the landlord or
owner ofthe property .where the violation is occurring.
7) TimePeriod for Correction. If a notice ofabatement is affirmed
by
the
Chapter 9. 56 PUBLIC NUISANCES Page 10 of14
violations hearing examiner, the person responsible for the violation shall have thirty
days toabate the violation and bring the property into compliancewith the terms of
this chapter or the county may performthe abatement required therein, . and shall bill
the costs in the manner provided in Section 9.56.060 of this chapter. -
8)
Judicial Review. Any personwith standing to bring a land use petition under
Chapter 36.70C RCW, including the county, may seek review of the violations
hearing examiner' s decision by filing a land use petition in superior court and
complying with all requirements of Chapter 36.70C RCW.
Ord. 261 ( 2001) 1 ( part), 2001)
9.56.060 Abatement by the county.
1)
The county may abate a condition which constitutes a nuisance under this
chapter when:
a)
The terms of the voluntary correction agreement pursuant to Section 9.56.030 of
this chapter have not been met;
b) A notice ofabatement has been issued pursuant to Section 9. 56.040, a hearing has
been held pursuant toSection 9. 56.050, and the required correction has not been
completed by the date specified in the violations hearing examiner' s order; or
c)
The condition is subject tosummary abatement as provided for in subsection(2) of
this section.
2)
Summary Abatement. Whenever any nuisance causes a condition, the
continued existence ofwhich constitutes an immediate threat tothe public health,
safety or welfare or to the environment, the county may summarily and without prior
notice abate the condition. Notice of such abatement, including the reasonfor it,
shall be giventothe person responsible for the violation as soon as reasonably
possible after the abatement. If the person responsible for the violation is'a tenant,
notice ofsuch abatement shall also be given to the landlord or owner of the property
where.the violation is occurring. No right of action shall lie against the county or its
agents, officers, or employees for actions reasonably taken to prevent or cure any
such immediate threats, but neither shall the county be entitled to recover.any costs
incurredfor summary abatement, prior tothe time that actual notice of same is
provided tothe person responsible for the violation.
3)
Authorized Action by the County. Using any lawful means, the county may
enter upon the subject property and may remove or correct the condition that is
subject to abatement. The county may seek suchjudicial process as it deems
necessary to effect the removal or correction of such condition.
a) Removal ofJunk M otor Vehicles, Vehicle Hulk or Parts Thereof. If the owner or
personfound responsible for a nuisance involving a junk motor vehicle, vehicle hulk or
any parts thereof fails tocorrect his/her nuisancewithin the date specified inthe
violations hearing examiner' s order or notice of summary abatement, the county, upon
notificationfromthe director,
may
enter the subject
property
toinspect and
certify
that a
Chapter 9.56 PUBLIC NUISANCES
Page 11 of14
vehicle meets the criteria ofa junk motor vehicle as defined in this chapter. The law
enforcement officer or county agent making the certification shall record the make and
vehicle identification number or license number of the vehicle ifavailable and/or legible,
and shall alsodocument in detail the damage or missing equipment to verify whether the
approximate value ofthe vehicle is equivalent only tothe approximate value ofthe scrap
in it (only if that is one of the definitional criteria that was alleged in the notice of
abatement issued by the county). The vehicle shall then be photographed by the officer
or county agent, removed fromthe property by the county, and disposed of by a licensed
vehiclewrecker, hulk hauler, or scrap processor with notice tothe Washington State
Patrol and the Washington State Department of Licensing that the vehicle has been
wrecked. The vehicle shall only be disposed of as scrap.
b)
Photographic Record. The county shall maintain a photographic record of all abated
junk motor vehicles fora period of twoyears following abatement. At the conclusion of
the two-year period, a written report, along with copies ofthephotographs, shall be
forwarded to the board of county commissioners.
4)
Recovery of Costs and Expenses. The costs of correcting a condition which
constitutes a nuisance under this chapter, including all incidental expenses, shall be
billed to the person responsible for the nuisance and/or the owner, lessor, tenant or
any other person entitled to control the subject property, and shall become due and
payable to the county withinfifteen calendar days of the date of mailing the billing
for abatement. The term"incidental expenses" includes, but is not limited to,
personnel costs, both direct and indirect and including attomey' s fees; costs
incurred in documenting the violation; towing/hauling, storage and removal /disposal
expenses; and actual expenses and costs of the county in preparing notices,
specifications and contracts associated with the abatement, and in accomplishing
and/or contracting and inspecting the work; and the costs of any required printing
and mailing. All such costs and-expenses shall constitute a lien against the affected
property, as set forth in subsection(6) ofthis section.
5)
Interference. Any personwhoknowingly hinders, delays or obstructs any
county employee acting on directionof the director in the discharge of the county
employee' s official powers or duties in abating a nuisance under this chapter, shall
be guilty ofa misdemeanor punishable by imprisonment not exceeding ninety days
and/or a fine not
exceeding $
1, 000.00.
6) Lien
Authorized. The county shall have a lien for any monetary penalty
imposed, the cost of any abatement proceedings under this chapter, and all other
related costs against the real property on which the monetary penalty was imposed
or any of the work of abatement was performed. The lien shall run with the land, but
shall be subordinate to all previously existing special assessment liens imposed on
the same property and shall be superior toall other liens, except for state and
county taxes, with which it shall be on a parity.
a)
The director shall cause a claimfor lien to be filed for record within ninety days from
the later ofthe date that the monetary penalty is due, the work is completed, or the
nuisance abated.
Chapter 9. 56 PUBLIC NUISANCES Page 12 of14
b)
The claimof lien shall contain sufficient information regarding the notice of
abatement, as determined by the director, a description ofthe property to be charged
with the lien and the owner ofrecord, and the total amount ofthe lien.
c)
Any such claimof lien shall be verified by the director, and may be amended to
reflect changed conditions.
Ord. 261 ( 2001) 1 ( part), 2001)
9.56.070 Environmental mitigation agreementfor outdoor storage ofjunk motor
vehicles on private property.
Pursuant tosubdivision(10)( b)(iii)(A) ofSection 9.56.020 of this chapter, an
environmental mitigation agreement between a property owner and the department is
required before the outdoor storage of uptosix screenedjunk motor vehicles will be
approved. A property owner may enter intosuch agreement with the department for a
one -timefee of $10.00 per vehicle, the proceeds fromwhich shall be usedto assist with
clean up costs associated with this chapter. In order to mitigate any potential
environmental impact fromthe storage of these junk motor vehicles, the property owner
must agree toinstitute one of the following twopreventative measures:
1)
Each junk motor vehicle must be drained of all oil and other fluids including,
but not limitedto, engine crankcase oil, transmission fluid, brake fluid and radiator
coolant or antifreeze prior to placing the vehicle on site; or
2)
Drippans or pads must be placed and maintained underneath the radiator,
engine block, transmission and differentials of each junk motor vehicle to collect
residual fluids.
Either preventative measure shall require that the owner ofsuch vehicle(s) clean up and
properly dispose ofany visible contamination resulting fromthe storage ofjunk motor
vehicles. The agreement will require the property owner toselect one ofthe two
preventative measures and toallowfor an initial inspection ofthe property by the
department toassure that the preventative measure has been implemented tothe
satisfaction ofthe department. By entering intothe agreement, the property owner further
agrees to allow the department entry ontothe property on an annual basis for re-
inspection toassure compliance with the approved agreement. If a property is found to
be in compliance with the terms of the agreement for two consecutive inspections, the
department may waive the annual inspection requirement. A property owner found tobe
in violationofthe agreement may be fined a monetary penalty in accordance with Section
9. 56.040(5), and the property may be deemed a nuisance in accordance with the
provisions ofthis chapter.
Ord. 261 ( 2001) 1 ( part), 2001)
9. 56.080 Additional enforcement procedures.
The provisionsofthis chapter are not exclusive, and may be used in addition to other
enforcement provisions authorized by this code.
Ord. 261 ( 2001) 1 ( part), 2001)
Chapter 9. 56 PUBLIC NUISANCES
Page 13 of14
9. 56.090 Removal of personal property and/or solidwaste placed ontopublic
access.
1)
Once personal property and/or solidwaste belonging to an evicted tenant has
been placed ontopublic right -of -way pursuant toa court- ordered eviction per Title
59 RCW, the evicted tenant/owner of the personal property and/or solid waste or
his/her designee shall have twenty -four hours to remove said personal property
and/or solid waste fromthe public right -of -way. Notice ofsuch removal after twenty -
four hours shall be given to the evicted tenant/owner ofthe personal property and/or
solid waste or his/her designee. if, after twenty -four hours, the evicted tenant/owner
or his/her designee has not removed the personal property and/or solid waste from
the public right -of -way, the property shall be deemed a nuisance, and the
landlord/property owner or his/her designee shall remove the personal property
and/or solid waste for proper disposal withinforty-eight hours or the county shall
seek to abate the nuisance, pursuant toSection 9.56.060, to be billed tothe
landlord/property owner or his/her designee.
Ord. 261 ( 2001) 1 ( part), 2001)
9. 56.100 Conflicts.
In the event of a conflict between this chapter and any other provision ofthe Kitsap
County Code or other county ordinance providing for a civil penalty, this chapter shall
control.
Ord. 261 ( 2001) 1 ( part), 2001)
9. 56.110 Representation by attorney.
1)
A person subject to proceedings under this chapter may appear on his or her
own behalf or be represented by counsel.
2)
The prosecuting attorney representing the county may, but need not, appear in
any proceedings under this chapter.
Ord. 261 ( 2001) 1 ( part), 2001)
This page ofthe Kitsap County Code is current through
Ordinance 461 ( 2010), passed September 13, 2010.
Disclaimer: The Clerk of the Board' s Office has the official
version of the KitsapCounty Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County
Website:
http://
www.kitsapgov.com/
County
Telephone: ( 360) 337-4870
Code Publishing Company
class="Cite " >9. 56. 100 Conflicts.
In the event of a conflict between this chapter and any other provision of the Kitsap County Code
or other county ordinance providing for a civil penalty, this chapter shall control.
Ord. 261 ( 2001) 1 ( part), 2001)
Chapter 9. 56 PUBLIC NUISANCES Page 14 of 14
9. 56.110 Representationby attorney.
1)
A person subject toproceedings under this chapter may appear on his or her own behalf
or be represented by counsel.
2)
The prosecuting attorney representing the county may, but need not, appear in any
proceedings under this chapter.
Ord. 261 ( 2001) 1 ( part), 2001)
This page of the KitsapCounty Code is current through
Ordinance 461 ( 2010), passed September 13, 2010.
Disclaimer: The Clerk of the Board' s Office has the official
version of the Kitsap County Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County
Website:
http: / /
www.kitsapgov.com/
County
Telephone: ( 360) 337-4870
Code
Publishing Company
Chapter 10.24WEAPONS
Page 1 of11
Chapter 10.24
WEAPONS
Sections:
Article 1
Snap-Blade Knives and Tear Gas Pens or Projectors
10.24.010 Definitions.
10.24.020
Convictionfor display or possession.
10.24.030 Exemptions.
10.24.040
Penalty.
Article 2
Pistols and Other Short Firearms
10.24.050 Pistol defined.
10.24.060
General regulations.
10.24.070 Exemptions.
Article 3
No- Shooting Areas
10.24.080 Definitions.
10.24.090 Discharge offirearms Areas where prohibited.
10.24.100 Exceptions.
10.24.103 Ranges.
10.24.105 Review committee.
10.24.107
Designation of additional no- shooting areas through petition
method.
10.24.110 Violation
Penalty.
Article 1 .
Snap-Blade Knives and Tear Gas Pens or Projectors
10.24.010 Definitions.
a) "
Person" as used in this article means any individual, firm, partnership,
association or corporation.
b) "
Snap-blade knife" as used in this article means any knife having a. blade
which is or can be concealed in its handle and ejected therefromby a
mechanical or spring device. This definition shall not apply tofixed-blade knives
having blades which pivot on and fold intotheir respective handles and can be
opened only manually.
c) "
Tear gas pen or projector" as used in this article means any container or
device
having
the appearance of a pen or pencil flashlight, which is capable of
Chapter 10.24WEAPONS
Page 2 of11
dispensing in the atmosphere a gas - loaded cartridge.
Ord. 24(1971) ( part), 1971)
10. 24.020 Convictionfor display or possession.
a)
No person shall display, sell, give away, purchase or possess any snap-
blade knife, or tear gas pen or projector.
b)
Upon the conviction of any person under the provisions ofthis article, the
court havingjurisdiction in the case shall order the Kitsap County sheriffto
destroy any snap-blade knife or tear gas pen or projector entered as evidence in
the case.
Ord. 24(1971) ( part), 1971)
10.24.030 Exemptions.
This article shall not apply to marshals, sheriffs, prison or jail wardens or their
deputies, policemen or other law enforcement officers or to members ofthe
Army, Navy, Coast Guard or M arine Corps of the United States or of the
National Guard or organized reserves when on duty, or toofficers or employees
ofthe United States duly authorized tocarry snap-blade knives or tear gas pens
or projectors.
Ord. 24(1971) ( part), 1971)
10.24.040 Penalty.
Violation ofany provision ofthis article is a misdemeanor, punishable by a fine
not exceeding two hundred fifty dollars or by imprisonment in the county jail for a
termnot exceeding ninety days.
Ord. passed August 28, 1972: Ord. 24( 1971) ( part), 1971)
Article 2 Pistols and Other Short Firearms
10.24.050 Pistol defined.
Pistol" as used in this article means any firearmwith a barrel Tess than twelve
inches in length.
Ord. 25 ( 1971) ( part), 1971)
10.24.060 General regulations.
a) No person shall carry a pistol in any vehicle unless it is unloaded or carry a
pistol concealed on his person, except in his place of abode or fixed place of
business, without a license therefor as provided for in RCW 9.41.
b) No person shall deliver a pistol to
any
person under the age of
twenty -
one
Chapter 10.24
WEAPONS
Page 3 of11
or to one who he has reasonable cause to believe has been convicted of a crime
ofviolence, or is a drug addict, an habitual drunkard, or of unsound mind.
c)
Noperson shall change, alter, remove or obliterate the name of the maker,
model, manufacturer' s number, or other mark of identification on any pistol.
Possession of any pistol uponwhich any such mark has been changed, altered,
removed or obliterated, shall be prima facie evidence that the possessor has
changed, altered, removed, or obliterated the same..This shall not apply to
replacement barrels in old revolvers, which barrels are produced by current
manufacturers and therefore donot have the marking on the barrels of the
original manufacturers whoare no longer in business.
Ord. 25 (1971) ( part), 1971)
10.24.070 Exemptions.
The provisions of this article shall not apply to marshals, sheriffs, prison orjail
wardens or their deputies, policemen or other law enforcement officers, or to
members ofthe Army, Navy or M arine Corps ofthe United States or ofthe
National Guard or organized reserves when on duty, or to regularly enrolled
members of any organization duly authorized to purchase or receive such
weapons fromthe United States or fromthis state, or to regularly enrolled
members of clubs organized for the purpose oftarget shooting or modern and
antique firearmcollecting or to individual hunters; provided, such members are
at, or are going toor fromtheir places oftarget practice, or their' collector' s gun
shows and exhibits, or are on a hunting, camping or fishing trip, or toofficers or
employees ofthe United States duly authorized to carry a concealed pistol, or to
any person engaged in the business of manufacturing, repairing or dealing in
firearms, or the agent or representative of any such person having in his
possession, using or carrying a pistol in the usual or ordinary course of such
business, or to any person while carrying a pistol unloaded and in a secure
wrapper fromthe place of purchase to his home or place of business or to a
place of repair or back to his home or place of business or in moving fromone
place ofabode or business to another.
Ord. 25 ( 1971) ( part), 1971)
Article 3
No- Shooting Areas
10. 24.080 Definitions.
The following definitions shall apply in the interpretation and enforcement ofthe
ordinance codified in this article:
1) "
Firearm" means any weapon or device by whatever name known
which will or is designed to expel a projectile by the action of an explosion.
The term"firearm" shall include but not be limited to rifles, pistols, shotguns
Chapter 10.24 WEAPONS Page 4 of11
and machine guns. The term"firearm" shall not include devices, including
but not.limited to"nail guns," which are used as tools in the construction or
building industries and which would otherwise fall withinthis definition.
2) "
Shoreline" means the border between a body of water and land
measured by the ordinary high water mark.
3) "
Ordinary high water mark" means that mark on all lakes, streams and
tidal water which will be found by examining the bed and banks in
ascertaining where the presence and action of waters are socommon and
usual and solong continued in all ordinary years as tomark upon the soil a
characteristicdistinct fromthat ofthe abutting upland in respect to
vegetation; provided, that in any area where the ordinary high water mark
cannot be found the ordinary high water mark adjoining salt water shall be
the line of mean higher high tide.
4) " Range" means a place set aside and designated for the discharge of
firearms for individuals wishing to practice, improve upon or compete asto
their shooting skills.
Ord. 50 -C (1993) 1, 1993: Ord. 50 -B ( 1993) 1, 1993: Ord. 50 -A ( 1985) 1,
1985)
10. 24.090 Discharge offirearms Areas where prohibited.
a)
The discharge of firearms is prohibited withinfive hundred yards of any
shoreline in the unincorporated areas of Kitsap County.
b)
The discharge offirearms in the unincorporated areas of Kitsap County is
further prohibited in the following instances:
1)
In any area designated as a " no shooting" area pursuant toSection
10. 24.107 of this chapter; specifically:
A)
Section 23, Township25, Range 1 West, Willamette
M eridian, Kitsap County, Washington, except for the following
area: The southwest quarter except that portion lying northeast of
the Seabeck Highway, of Section 23, Township 25, Range 1
West, Willamette M eridian;
B)
That area bounded on the west by Bethel - Burley Road, on
the north by Burley- Olalla Road, on the east by Bandix Road, and
on the south by the KitsapCounty /Pierce County line;
C)
That area bounded on the west by a line that begins at the
southwest corner oftax parcel number 252301 -4-012 -1009,
Chapter 10.24WEAPONS
Page 5 of11
thence in a straight line northeasterly tothe northeast corner oftax
parcel number 252301 -1- 019 -1008, thence north along the east
boundary oftax parcel number 252301 -1- 018 -1009 toits
intersection with the south boundary of tax parcel number 252301-
4-013 -1009, thence west along said south boundary tothe
southwest corner ofsaidtax parcel, thence north along the
western boundary of said tax parcel tothe intersectionof
Southwest Lake Flora Road, thence easterly along the southerly
right -of -way of said road to its intersectionwith J. M Dickenson
Road Southwest, thence southwesterly along the westerly right -of-
way of said road to its intersection with the eastern boundary of
tax parcel number 252301 -4- 018 -1003, thence north along said
boundary to the northeast corner of said parcel, thence west along
the northern boundary of said parcel tothe Alpine Lake No-
Shooting Area.
2)
On any parcel of land less thanfive acres in size;
3)
Towards any building occupied by people or domesticanimals or
used for the storage offlammable or combustible materials where the point
of discharge is withinfive hundred yards of such building;
4)
Fromone -half hour after sunset to one -half hour before sunrise;
5)
Withinfive hundred yards ofthe following lakes located, in whole or in
part, in the unincorporated areas of KitsapCounty: Long Lake, Kitsap Lake,
Wildcat Lake, Panther Lake, M ission Lake, Tiger Lake, WilliamSymington
Lake, Tahuya Lake, Island Lake, Horseshoe Lake, Carney Lake, Wye
Lake, Buck Lake, Fairview Lake and Bear Lake.
c)
Nothing in this section shall be construed or interpreted as abridging the
right of the individual guaranteed by Article I, Section 24 of the state Constitution
to bear arms in defense ofself or others.
Ord. 270 (2002) 1, 2002: Ord. 50 -F( 2000)
1, 2000: Ord. 50 -C ( 1993)
1993: Ord. 50 -B ( 1993) 2, 1993: Ord. 50 -A ( 1985) 2, 1985)
10.24.100 Exceptions.
The provisions of Section 10. 24.090 shall not apply tothe discharge offirearms:
1)
By law enforcement officers, including Washington State Department
of Fish and Wildlife officers, or security personnel inthe course oftheir
official duties;
2) On a range, provided that
any
such range shall
comply
with the
Chapter 10.24 WEAPONS Page 6 of11
criteria for ranges adopted by the Kitsap County board of commissioners
pursuant toSection 10.24.103 of this chapter;
3) In the course offarmslaughter activities;
4) Pursuant to RCW 77.12.265;
5)
When such discharge is pursuant to and in compliance with any other
valid state or federal law.
Ord. 50 -C ( 1993) 3, 1993: Ord. 50 -B ( 1993) 2, 1993: Ord. 50 -A (1985) 3,
1985)
10.24.103 Ranges.
a) The discharge of firearms shall be allowed on ranges which meet the
criteria ofthis section. The property owner shall apply for and obtain a permit for
a range. The application shall be submitted tothe Kitsap County department of
community
development (DCD). An applicationfor a range shall indicate
whether the firearms to be used at the range are ofthe rimfire, elevated shot or
other type or variety and whether the proposed range isto be a private or public
range. Upon receipt ofthe application, DCDor its designated agent shall inspect
the proposed range toensure the suitability ofthe intended. use, taking into
consideration the most currently available guidelinesfor ranges promulgated by
the National Rifle Association. Notice ofthe permit application shall be provided
as required by the Land Use and Developrnent Procedures Ordinance (Title 21
ofthis code).
In addition, DCDshall post the property on which the proposed
range is tobe located with a notice of intended use. No permit shall be issued
for a range unless the proposed range is first inspected and approved by a
certified range technical advisor or equivalent.
b)
Permit applications for private ranges may be processed administratively
by DCD. Permit applications for all other ranges shall be processed in
accordance with existing procedures for the processing of unclassified use
permits.
c)
Ranges shall be divided intotwo categories as more fully described in this
subsection:
1) Private Ranges. A range shall be deemed a private range it if meets
the following criteria:
A)
Nofee is charged for use of the range or for membershipin
the groupof individuals allowedto use the range.
B) Use ofthe range is limited to
family
members and
up
totwo
Chapter 10.24WEAPONS
Page 7 of11
guests ofthe property owner at any one time; provided, however,
that the property owner may apply to DCDuptotwice annually for
a special event exemption allowing in excess oftwoguests at a
shooting event.
C)
A permit has been issued for use of that property as a
private range.
The provisions ofthis subsection shall be available toand apply equally to
property being rented on at least a month -to-month basisfromthe property
owner, provided, however, that both the individual renting the property and the
property owner shall sign any application for a private range permit or special
event exemption as tothat property.
2)
Public Ranges. All rangeswhich do not meet the criteria for a private
range shall be deemed to be public ranges.
d)
Nothing in this section or any other provisionofthis code shall be
construed as authorizing an application or a permit for a range to be located in
whole or in part in an area designated as an area where the discharge of
firearms is prohibited; ranges in such areas are expressly prohibited. Nothing in
this section shall be construed as permitting the discharge of firearms the
ownership or possession of which is otherwise prohibited by law. Nothing in this
section shall be construed as permitting the discharge of a firearmby an
individual whois otherwise prohibited by lawfromowning or possessing a
firearm.
Ord. 50 -G ( 2000) 1, 2000: Ord. 50 -C ( 1993) 5, 1993: Ord. 50 -A ( 1985)
part), 1985)
10.24.105 Review committee.
a)
A review committee is created for the purpose of recommending tothe
county board of commissioners the appropriate criteria for ranges and for
petitions toestablish additional "no shooting" areas within Kitsap County. Such
committee shall consist of seven persons as follows:
1)
The county sheriff, who shall chair such committee, or his designee.
2)
The director of the county department of community development, or
his designee.
3)
The presidents of the Kitsap Rifle and Revolver Club and the Poulsbo
Sportsman Club, or their designees.
4) Three citizens -at -large to be appointed
by
the
county
board of
Chapter 10.24WEAPONS Page 8 of11
commissioners.
b) . Uponthe receipt of the review committee' s recommendations, the board of
commissioners shall set such matters for consideration at the next regularly
scheduled public hearing or as soon thereafter as they may appropriately be
heard.
Ord. 50 -B ( 1993) 5, 1993)
10.24.107 Designation of additional 'no- shooting areas through petition
method.
a)
The establishment or disestablishment.of a " no shooting" area in additionto
those described in Section 10.24.090 may be requested by petition by the
registered voters residing in such proposed additional areas. Such petition may
include a request that the discharge of certaintypes of firearms be nevertheless
allowed during certaintimes and under certain conditions. The superintendent of
a school district may also request by petition that school property withinthat
district which is located in the unincorporated area of Kitsap County and on
which a building :having an occupancy classification of "E" under the Uniform
Building Code is situated, together with the area within five hundred yards of the
school property' s perimeter, be designated as a " no shooting" area. Any such
petition shall be presented tothe KitsapCounty board ofcommissioners and
shall substantially comply in content with the following criteria:
1) .
The proposed area shall contain a minimumof fifty dwelling units or,
in the alternative, a minimumarea of one square mile;
2)
The proposed area shall have readily identifiable boundaries, which
shall be shown on a map attached tothe petition;
3)
A petition requesting that the discharge of certaintypes of firearms be
nevertheless allowed during certaintimes and under certain conditions
shall set forth with specificity the types of firearms, times and conditions
being proposed;
4) The petition for the proposed area shall bear the signatures ofat least
fifty -one percent ofthe proposed area' s registered voters; provided,
however, that a petition for a " no shooting" area involving school property
need be signed only by the superintendent of the school district in which
the school property is located.
b)
A petition for a " no shooting" area shall be in substantially the following
form:
PETITION TO CREATEA "NO SHOOTING" AREA
Chapter 10.24 WEAPONS
Page 9 of11
To: The KitsapCounty Board of Commissioners
We, the undersigned citizens of KitsapCounty, State ofWashington,
being legally registered voters withinthe respective precincts set
opposite our names, do hereby respectfully request that the area
generally
known as
be established as a " No
Shooting" area pursuant to KitsapCounty Code Section 10.24.107.
We further request that the discharge of certain types of firearms,
commonly
known as,
be nevertheless
allowed during certaintimes of the year, namely,
under thefollowing conditions:
1.
2.
3.
4.
5.
The proposed area' s boundaries are shown on the attached map and
are generally described as follows:
Here insert proposed area boundary description]
Each of us says:
1)
I ama legally registered voter of the State of Washington in the
precinct written after my name below.
2)
The portion of such precinct within which I reside is included
within the proposed"No Shooting" area.
3)
M y residence address is correctly stated below.
4)
I have personally signed this petition.
Petition Name
and Signature
Precinct
Name
Residence
Address Number
and Street
City or PO
Box No.
Zip
Code
Chapter 10.24 WEAPONS
page 10ofll
Failure ofa petition tocomply with any of the above format shall not
automatically invalidate such petition but shall be a matter for consideration by
the KitsapCounty board of commissioners as towhether the intent and
standardsofthis section have been met.
c) Uponthe receipt of such a petition, the board of commissioners shall
forward the petition tothe KitsapCounty auditor for verification of the signature
requirements ofthis section. Upon the return of area verificationfromthe auditor,
the board shall set the matter for consideration at the next regularly scheduled
public hearing or as soon thereafter as it may appropriately be heard.
d)
At any time after one year fromthe effective date of the establishment of a
noshooting" area pursuant tothis section, the residents of such area may seek
abrogation of such by the same procedure provided in this sectionfor the
establishment of a " no shooting" area, provided however, that in the event of
such abrogation, Section 10.24.090 of this chapter shall remain in full force and
effect astothat area.
Ord. 50 -C ( 1993) 4, 1993: Ord. 50 -B ( 1993) 6, 1993)
1.0.24.110 Violation
Penalty.
Violation ofSection 10. 24.090 is a misdemeanor punishable as provided in
Section 1. 12.010 of this code. In addition toor as an alternative tothe criminal
penalty, any violation of Section 10.24.090 shall constitute a Class I civil
infraction. Each violation shall constitute a separate infractionfor each and every
day orportionthereof during which the violation iscommitted, continued or
permitted. Infractions shall be processed in accordance with the provisions of
the Civil Enforcement Ordinance (Chapter 2. 116 ofthis code). The choice of
enforcement actiontaken and the severity ofany penalty shall be based upon
the nature of the violation and the damage or risk tothe public.
Ord. 50 -D( 1997) 1, 1997: Ord. 50 -A (1985) 4, 1985)
Chapter 10.24 WEAPONS
Page 11 of11
This page of the KitsapCounty Code is current through
Ordinance 461 ( 2010), passed September 13, 2010.
Disclaimer: The Clerk of the Board' s Office has the official
version of the KitsapCounty Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County
Website:
http: / /www.kitsapgov.corn/
County Telephone: ( 360) 337-4870
Code
Publishing Company
Chapter 2. 116 CIVILENFORCEM ENT Page 4 of7
is received, an appropriate order shall be entered in the court' s records, and a record of
the response order shall be furnished tothe department.
C. If the person determinedto have committed the civil infraction does not contest the
determination but wishes to explain mitigating circumstances surrounding the infraction,
the person shall respond by completing the portion of the notice ofcivil infraction
requesting a hearing for that purpose and submitting it, either by mail or in person, tothe
court specified on the notice. The court shall notify the person in writingof the time,
place, and date of the hearing, and that date shall not be earlier than seven days nor
more than ninety days fromthe date of the notice of the hearing, except by agreement.
D. If the person determined to have committed the civil infraction does not contest the
determinationbut wishes to explain mitigating circumstances surrounding the infraction,
the person shall respond by completing the portion of the notice ofcivil infraction
requesting a hearing for that purpose and submitting it, either by mail or in person, tothe
court specified in the notice. The court shall notify the person in writing ofthe time, place,
and date ofthe hearing, and that date shall not be earlier than seven days nor more than
ninety days fromthe date of the notice of the hearing, except by agreement.
E.
The court shall enter a default judgment assessing the monetary penalty prescribed
for the civil infraction, and may notify the prosecuting attorney of the failure to respond to
the notice ofcivil infraction or toappear at a requested hearing if any person issued a
notice of civil infraction:
i. Fails torespond tothe notice of civil infraction as provided in subsection(B) of
this section; or
ii.
Fails to appear at a hearing requested pursuant to either subsection(C) or (D)
ofthis section. If a default judgment is entered, the court shall notify the department
of the entry of the default judgment, and the reason therefor.
Ord. 209 (1997) 9, 1997)
2.116.100 Notice Failure tosignNonappearance
Failure tosatisfy penalty.
A.
A person whofails tosign a notice of civil infraction is guilty of a misdemeanor.
B.
Any personwillfully violating his or her written and signed promise to appear in court
or his or her written and signed promise to respond to a notice of civil infraction is guilty
ofa misdemeanor regardlessof the disposition of the notice of civil infraction; provided,
that a written promise to appear in court or a written promise to respond to a notice of
civil infraction may be complied with by appearance of counsel.
C.
A personwhowillfully fails to pay a monetary penalty or toperformcommunity
service as required by a court under this chapter may be found in civil contempt of court
after notice and hearing.
Ord. 209 ( 1997) 10, 1997)
2. 116.110 Representation by attorney.
A. A person subject to proceedings under this chapter
may
appear or be represented
Chapter 2. 116 CIVILENFORCEM ENT
Page 5 of7
by counsel.
B.
The prosecuting attorney representing the county may, but need not, appear in any
proceedings under this chapter, notwithstanding any statute or court rule to the contrary.
Ord. 209 (1997) 11, 1997)
2.116.120 Infraction
Hearing
Procedure Burden of proof Order Appeal.
A.
A hearing held tocontest the determination that an infraction has been committed
shall be without a jury.
B.
The court may consider the notice of infraction and any sworn statements submitted
by the authorized representative whoissued and served the notice in lieu of his or her
personal appearance at the hearing. The person named in the notice may subpoena
witnesses, including the authorized representative who has issued and served the notice,
and has the right topresent evidence and examine witnesses present in court.
C.
The burden of proof is on the county to establish the commission ofthe infraction by
a preponderance of evidence.
D.
After consideration ofthe evidence and argument, the court shall determine whether
the infractionwas committed. If it has not been established that the infraction was
committed, an order dismissing the notice shall be entered in the court' s records. If it has
been established that a civil infraction has been committed, an appropriate order shall be
entered in the court' s records.
E.
Anappeal fromthe court' s determination to order shall be tothe Superior Court in
the manner provided by the Rules for Appeal of Decisions of Courts of Limited
Jurisdiction. The decision of the Superior Court is subject only todiscretionary review
pursuant to the Rules ofAppellate Procedure.
Ord. 209 (1997) 12, 1997)
2.116.130 Infraction
Explanation of mitigating circumstances.
A.
A hearing held for the purpose of allowing a person to explain mitigating
circumstances surrounding the commission of an infraction shall be an informal
proceeding. The person may not subpoena witnesses. The determination that a civil
infraction has been committed may not be contested at a hearing held for the purpose of
explaining mitigating circumstances.
B.
After the court has heard the explanation of the circumstances surrounding the
commission of the civil infraction, an appropriate order shall be entered in the court' s
records.
C.
There shall be no appeal fromthe court' s determination or order.
Ord. 209 ( 1997) 13, 1997)
2.116.140
M onetary
penalties Restitution.
A. A personfound to have committed a civil infraction shall be assessed a
monetary
Chapter 10.28NOISE
Page 1 of8
Chapter 10.28
NOISE*
Editor' s Note: Prior ordinance history: Ord. 3 ( 1969) and part of an unnumbered ordinance dated
August 28, 1972.
Sections:
10.28.010 Definitions.
10.28.030 Environmental designations.
10.28.040
M aximumpermissible environmental noise levels.
10.28.050
Exemptions fromSections 10.28.040 and 10.28.145 between 7: 00 a.m. and
10: 00 p.m.
10.28.060
ExemptionsfromSections 10.28.040(b) and 10.28.145.
10.28.070
Exemptions fromSection 10.28.040 relatingtonoise reception in Class A
EDNAs and fromSection 10.28.145.
10.28.080
Exemptions fromall provisions of Sections 10.28.040 and 10.28.145.
10.28.085
Exemptions fromall provisions of Section 10.28.145.
1028.090 Variances
Granting when.
10.28.100 VariancesImplementation schedule.
10.28.110 VariancesIssuance Hearings when.
10.28.120 Variances
Noise sources with overriding considerations for.
10.28.130 M easurement.
10.28.140
Enforcement policy.
10.28.145 Publicdisturbance noises.
10.28.146 Enforcement of publicdisturbance noises.
10.28.150 Violation
Penalty.
10.28.010 Definitions.
a)
Background sound level" means the level of all sounds in a given environment,
independent ofthe specific source being measured.
b) "
dBa meansthe sound pressure level in decibels measured using the "A" weighting
network on a sound level meter. The sound pressure level, in decibels, ofa sound is twenty
times the logarithmtothe base ten ofthe pressure oftwenty micropascals.
c)
EDNA" means the environmental designationfor noise abatement, being an area or zone
environment) within which maximumpermissible noise levels are established.
d) "
Noise" means the intensity,_duration and character of sounds, fromany and all sources.
e) - "
Person" means any individual, corporation, partnership, association, governmental body,
state agency or other entity whatsoever.
f) "
Property boundary" means an imaginary line exterior toany enclosed structure, at ground
surface, which separates the real property owned by one personfromthat owned by another
person, and itsvertical extension.
g) " Racing event means any motorvehicle competition conducted under a permit issued by
a governmental authority having jurisdiction or, if such permit is not required, then under the
auspices of a recognized sanctioning body.
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Chapter 10.28 NOISE
Page 2 of8
h) "
Receiving property" means real property withinwhich the maximumpermissible noise
levels specified herein shall not be exceededfromsources outside such property.
1) "
Sound level meter" means a device which measures sound pressure levels and conforms
toType 1 or Type 2 as specified in theAmerican National Standards Institute Specification
S1. 4- 1971.
j) "
Watercraft" means any contrivance, excluding aircraft, used or capable of being used as a
meansof transportationor recreation onwater.
Ord. 3-A (1975) 2, 1975)
10.28.030 Environmental designations.
For purposes of establishing noise limitations, the unincorporated areas of KitsapCounty shall
be classified inaccordance with KitsapCounty zoning ordinancecodified in Title 17, and any
amendments thereto, as-follows:
a)
Residential Zones. Class A EDNA residential zones shall include the following:
1)
All single - family residential zones;
2)
All multiple- family residential zones;
3) Residential mobile home zone;
4) Agricultural zone;
5)
Forestry zone;
6) Undeveloped land zone.
b)
Commercial Zones. Class B EDNA commercial zones shall include thefollowing:
1) Business neighborhood zone;
2) Businessgeneral zone;
3) Commercial zone;
4)
Light manufacturing zone.
c)
Industrial Zones. Class C EDNA industrial zones shall include thefollowing:
M anufacturing zone.
Nonconforming uses, as defined by Chapter 17.460 of the KitsapCounty Zoning Ordinance,
and any amendmentsthereto, shall be classified according tothe actual use of the property
under the above EDNA classifications. The maximumpermissible noiselevel for a
nonconforming use shall be that level which is applicable tothe EDNA classification ofthe
nonconforming use limited by the EDNA of the receiving property.
Ord. 3-A (1975) 3, 1975)
10.28.040 M aximumpermissible environmental noise levels.
a)
The noise limitations established are as set forth in the following table after any applicable
adjustments providedfor herein are applied:
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Chapter 10.28 NOISE
Page 3 of8
EDNA OF NOISE EDNA OF RECEIVING
SOURCE PROPERTY
Class A Class B Class C
Class A 55 dBA 57 dBA 60 dBA
Class B 57 60 65
Class C 60 65 70
b)
Betweenthe hours of 10: 00 p.m. and 7: 00 a. m., the noise limitations ofthe foregoing
table shall be reduced by 10 dBA for receiving property withinClass A EDNAs.
c) .
At any hour of the day or night, the applicable noise limitations in subsections(a) and(b)
ofthis section may be exceededfor any receiving property by no more than:
1)
5 dBAfor a total offifteen minutes in any one -hour period; or
2)
10 dBA for a total offive minutes in any one -hour period; or
3)
15 dBA for a total of 1. 5 minutes in any one -hour period.
Ord. 3 -A (1975) 4, 1975)
10.28.050 ExemptionsfromSections 10.28.040 and 10.28.145 between7: 00 a.m. and
10: 00 p.m.
The following shall be exempt fromthe provisions ofSections 10.28.040 and 10.28.145
betweenthe hours of 7: 00 a. m. and 10: 00 p. m.:
1)
Sounds originatingfromresidential property relating totemporary projects for the
maintenance or repair of homes, grounds and appurtenances;
2)
Sounds created by the discharge offirearms onauthorized shooting ranges;
3)
Sounds created by blasting;
4)
Sounds created by aircraft engine testing and maintenance not relatedtoflight
operations, provided that aircraft testing and maintenance shall be conducted at remote
siteswhenever possible;
5)
Sounds created by the installationor repair of essential utility services.
Ord. 3 -B ( 1995) 2, 1995: Ord. 3 -A (1975)
q
5( a), 1975)
10.28.060 ExemptionsfromSections 10.28.040(b) and 10.28.145.
The following shall be exempt fromthe provisions of Sections 10.28: 040(b) and 10.28. 145:
1)
Noise fromelectrical substations and existing stationary equipment used in the
conveyance ofwater by a utility;
2)
Noise fromexisting industrial installations which exceed the standards contained in
these regulations andwhich, over the previousthree years, have consistently operated in
excess offifteen hours per day as a consequence of process necessity and/or
demonstrated routine normal operation. Changes inworking hours, which would affect
exemptions under this regulation, require approval ofthe KitsapCounty commissioners,
or theirduly authorized representatives.
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Chapter 10.28 NOISE
Page 4 of8
a
Ord. 3 -8 (1995) 3, 1995: Ord. 3 -A (1975) 5( b), 1975)
10.28.070 ExemptionsfromSection 10.28.040 relating tonoise reception in Class A
EDNAs andfromSection 10.28.145.
The following shall be exempt fromthe provisionsof Section 10.28.040, and fromthe
provisions of Section 10.28.145, except insofar as such provisions relate tothe reception of
noise within Class A EDNAs betweenthe hours of 10: 00 p. m. and 7: 00 a. m.:
1)
Sounds originating fromtemporary construction sites as a result ofconstruction
activity;
2)
Sounds originating fromforest harvesting and silvicultural activity.
Ord. 3 -B ( 1995) 4, 1995: Ord. 3 -A (1975) 5(c), 1975)
10.28.080 Exemptions fromall provisions of Sections 10. 28.040 and 10.28. 145.
The following shall be exempt fromall provisions of Sections 10.28.040 and 10.28.145:
1)
Sounds created by motor vehicleswhen regulated by WAC Chapter 173 -62 and
motor vehicles, licensed or unlicensed when operated off publichighways except when
such sounds are received in Class A EDNAs;
2)
Soundsoriginating fromaircraft in flight and sounds that originate at airports which
are directly related toflight operations;
3)
Sounds created by surface carriers engaged in interstate commerce by railroad;
4)
Sounds created by waming devices not operating continuously for more thanfive
minutes, or bells, chimes and carillons;
5)
Sounds created by safety and protective devices where noise suppressionwould
defeat the intent ofthe device or is not economically feasible;
6)
Sounds created by emergency equipment and work necessary in the interests of law
enforcement orfor health, safety orwelfare ofthe community;
7)
8)
9)
Sounds originatingfrommotor vehicle racing events at existing, authorizedfacilities;
Sounds originatingfromofficially sanctioned parades and other public events;
Sounds fromexisting refrigeration equipment for preservation of retail food goods;
10)
Sounds emittedfrompetroleumrefinery boilers during the startupof the boilers;
providedthat the startupoperation is performedduring daytime hourswhenever possible;
11) ( Repealed);
12)
Sounds caused by a natural phenomena and unamplified humanvoices;
13)
Sounds created by the discharge of legal fireworks only during the specificdays,
times and locations where discharge is allowable pursuant to existing state and local law.
Ord. 3 -B ( 1995) 5, 1995: Ord. 133 -A (1992) 45, 1992: Ord. 133 (1989) 45, 1989: Ord. 3-
A (1975) 5(d), 1975)
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Chapter 10.28NOISE.
Page 5 of8
10.28.085 Exemptions fromall provisions of Section 10.28.145.
The following shall be exempt fromall provisions of Section 10.28.145 but not thereby made
exempt fromother applicable ordinances:
1)
Sounds commonly associated with an existing commercial operationwhich has been
approved through a public hearing process and is operating in compliance with all permit
conditions relating tonoise;
2)
Sounds commonly associatedwith an existing commercial operationwhich was
established prior tothe effective date of any land use regulation(s) and isthereby
nonconforming.
Ord. 3-B ( 1995) 6, 1995)
10.28.090 Variances
Granting when.
Variances may be granted by the KitsapCounty commissioners, or their duly authorized
representatives, toany personfromany particular requirement of this chapter, iffindings are
madethat immediate compliance with such requirement cannot be achieved because of
special circumstances rendering immediate compliance unreasonable in light of economic or
physical factors, encroachment uponan existing noise source, or because of nonavailability of
feasible technology or control methods. Any such variance or renewal thereof shall be granted
only for the minimumtime period found tobe necessary under thefacts and circumstances.
Ord. 3 -A (1975) 6(a), 1975)
10.28.100 VariancesImplementation schedule.
An implementation schedule for achieving compliance with this chapter shall be incorporated
intoany variance issued.
Ord. 3-A (1975) 6(b), 1975)
10.28.110 VariancesIssuance Hearings when.
Variancesshall be issued only upon application inwriting and after providing such information
as may be requested. Novariance shall be issuedfor a period of morethanthirty days except
upon due notice tothe publicwith opportunity tocomment. Public hearings may be held, when
substantial publicinterest is shown, at the discretionofthe issuing agency.
Ord. 3-A (1975) 6(c), 1975)
10.28.120 Variances
Noise sources with overriding considerationsfor.
Sources of noise, subject tothis chapter, upon which construction begins after the effective
date ofthis chapter, shall immediately comply with the requirementsof this chapter except in
extraordinary circumstanceswhere overriding considerations of 'publicinterest dictate the
issuance of a variance.
Ord. 3-A (1975) 6(d), 1975)
10.28.130 M easurement.
Noise measurement for the purposes ofenforcing the provisions of Section 10.28.040 shall be
measured indBA with a sound level meter with the point of measurement being at any point
within the receiving property; provided, however, a violation of this chapter may occurwithout
the above noise measurements being made.
Ord. 3 -A (1975) 7, 1975)
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Chapter 10.28 NOISE
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10.28. 140 Enforcement policy.
a)
Compliancewith this chapter may be enforced by mandatory injunction brought by the
owner or owners of land lying within the area affected by any violationofthis chapter, or the
prosecuting attorney may commence an actionor proceeding for abatement and enjoinment
thereof, inthe manner provided by law, and shall apply tosuch court as may havejurisdiction
togrant such relief as will abate, restrain and enjointhe violation.
b)
Any person, violating the provisions of this chapter, inaddition tothe penalties provided
for in Section 10.28.150, shall, by order ofthe court in such action, be orderedtoforthwith
abateand remove such nuisance; and ifthe same is not done by such offender withintwenty -
four hours, the same shall be abated and removed under the direction of the officer authorized
by order of the court, which order of abatement shall be entereduponthe docket of the court
and made a part ofthejudgment inthe action. Any such offender shall be liable for all costs
andexpenses ofthe abatement when such nuisance has been abated by any officer or
authorized agent of KitsapCounty; the costs and expenses shall be taxed as part ofthe costs
ofthe prosecution against the offender, liable tobe recoveredas other costs are recovered,
and in all caseswherethe officer is authorized by the court toabate any such nuisance, he
shall keepan account of all expenses attending such abatement; and in additiontoother
powersgiven tocollect such. costsand expenses, KitsapCounty may bring suit for the same in
any court ofcompetent jurisdictionagainst the offender carrying onthe nuisance so abated.
c)
In additiontoor as an alternative toany other penalty provided in this chapter or by law,
any violationof any provision of this chapter shall constitute a Class I civil infraction. Each
violationshall constitute a separate infractionfor each and every day or portionthereof during
whichthe violation is committed, continued, or permitted. Infractions shall be processed in
accordance with the provisions of the Civil Enforcement Ordinance (Chapter 2. 116 of this
code).
Ord. 3 -D( 1997) 1, 1997: Ord. 3 -A (1975) 9, 1975)
10.28.145 Publicdisturbance noises.
It is unlawful forany persontocause, or for any person in possession of real or personal
property to allowtooriginatefromsuch property, a publicdisturbance noise. Provided, that
ownersor possessors of real property shall not be responsible for publicdisturbance noises
created by trespassers. The following sounds are publicdisturbance noises:
1)
Frequent, repetitive or continuous sound of any homorsiren attached toa motor
vehicle, except as a warning ofdanger or as specifically permitted or required by law;
2)
Frequent, repetitive, or continuous sounds fromstarting, operating, repairing,
rebuilding, ortesting of any motor vehicle, motorcycle, dirt bike, or other off- highway
vehicle, or any internal combustionengine, within a rural or residential district, andwhich
unreasonably disturb or interferewith the peace, comfort and repose of owners or
possessors of realproperty inthe area affected by such noise;
3)
Use ofa sound amplifier or other device capable of producing or reproducing
amplifiedsound upon public streets for the purpose of commercial advertising or sales or
for attracting the attention of the publictoany vehicle, structure, or property or the
contentstherein except as permitted by law, exceptthat vendorswhose sole method of
selling isfroma moving vehicle shall be exempt fromthis subsection;
4)
Any loud and raucous sound made by useof a musical instrument, whistle, sound
amplifier, or other device capable of producing or reproducing soundwhich emanates
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Chapter 10.28 NOISE
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frequently, repetitively or continuously fromany building, structure or property, such as
sound originating froma band session, tavemoperation, or social gathering, and which .
unreasonably disturb, or interferewith the peace, comfort and repose of possessorsof
real property in the area affected by such noise;
5) Noise fromportable or motor vehicle audioequipment, such asa tape player, radio
or compact disc player, while in park areas, residential and commercial zones, or any
area where residences, schools, human servicefacilities, or commercial establishments
are in obvious proximity tothe source of the sound, and where the volume of such audio
equipment is such that it can be clearly heard by a person of normal hearing at a distance
offifty feet or more fromthesource ofthe sound; provided, however, that this section
shall not apply topersons operating portable audioequipment within a publicpark
pursuant toan event sanctioned by a responsible authority under valid permit or license.
Ord. 3-8 (1995) 7, 1995)
1018.146 Enforcement of publicdisturbance noises.
a)
The county sheriffs office shall enforcethe provisionsof Section 10.28.145. Evidence of
sound level through the use of a sound level meter reading shall not be necessary to establish
the commission of the offense. Provisions of Section 10.28.145 shall not affect any other claim,
cause ofactionor remedy including any prosecution for violation of sections regulating
environmental noise.
b)
For publicdisturbance noise that is not related to motor vehicles and noise emanating
fromvehicles, enforcement may be undertaken only upon receipt of a complaint made by a
person-residing orwhois employed in an area affected by a publicdisturbance noise, except
as provided in Section 10.28.145(5) inwhich event enforcement shall be undertaken upon
complaint made by any personaffected by the public disturbance noise.
c)
The subsections of Section 10.28.145 relating tomotor vehicles and noise emanating
fromvehicles may be subject toenforcement with orwithout a citizen' s complaint.
Ord. 3-B ( 1995) 8, 1995)
10.28.150 Violation
Penalty.
Inasmuch as this chapter is forthe benefit ofthe life, health, welfare and safety ofthe
inhabitants of the unincorporated areas of KitsapCounty, and is passed under the power given
tothe county commissioners by the state, it is a misdemeanor toviolate any of the provisions
of this chapter or any amendments thereto, and such violation shall be punishable by
imprisonment in the county jail for not more than ninety days, or by a fine of not more than two
hundredfifty dollars. Each day charged shall constitute a separate offense. The prosecuting
attomey shall have discretion in each violationof this chapter to proceed with prosecution,
either criminally. in accordance with this section or civilly in accordance with Section 10. 28.140,
or both.
Ord. 3-A (1975) 8, 1975)
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Chapter 10.28 NOISE
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The KitsapCounty Code is current through Ordinance 501
2013),
passedJanuary 14, 2013.
Disclaimer: The Clerk of the Board' s Office has the official
version of the Kitsap County Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County
Website:
http: / /www.kitsapgov.com/
http: / /www.kitsapgov.com/)
County Telephone: ( 360) 337-5777/ ( 800)
825 -4940
Email the county: openline@co. kitsap.wa. us
mallto: openllne@co.kitsap.wa. us)
Code Publishing Company
http:// www.codepublishing. com/)
eLibrary
http:// www.codepublishing.com/ elibrary.html)
http: / /
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Chapter 17. 1 I O DEFINITIONS
Page 1 of40
Chapter 17.110
DEFINITIONS
Sections:
17. 110.005
Generally.
17. 110.010
Abutting.
17. 110.015 Access.
17. 110.020
Accessory dwelling unit.
17. 110.025
Accessory living quarters.
17. 110.030
Accessory use or structure.
17. 110.035 Adjacent.
17. 110.040
Adjoining.
17. 110.045
Adult family home.
17.110.050 Agricultural uses.
17.11 Q055. _
Alley.
17.110.057
Alternative technology.
17. 110.060 Animal.
17. 110.065 Animal, small.
17.110.070 Animal hospital.
17. 110.075 Amusement center.
17. 110.085 Aquaculture practices.
17. 110.087
Assembly and packaging operations.
17. 110.090 Automobile repair.
17. 110.095 Automobile service station.
17.110.100
Awning.
17. 110.103 ( Repealed)
17. 110.105 Bed and breakfast house.
17. 110.110 Board.
17. 110.120 Boat yard.
17. 110. 125
Breezeway.
17110.126 Brew pubs.
17. 110.130 Buffer.
17. 110.132
Buffer, landscaping.
17.
110.
133 Buffer, screening.
17. 110.135
Building.
17. 110.140
Building height.
17. 110. 145
Building line.
17. 110. 150
Caretaker' s dwelling.
17. 110. 155 Carport.
17. 110. 157 Child care center.
17. 110.160 Clinic.
17. 110.165 Club.
17. 110.168 Co- location.
17. 110 170
Commission or planning commission.
17. 110.171 Comprehensive plan.
17. 110. 175 Conditional use.
Chapter 17. 110 DEFINITIONS
Page 5 of40
17. 110.675
17. 110.680
17.110.683
17. 110.685
17.110.686
17. 110.687
17. 110.688
17. 110.689
17.1- 10. 690
17.110.691
17. 110. 692
17. 110. 693
17. 110.695
17. 110.700
17. 11 0.705
17. 110.706
17. 110.707
17. 110.710
17. 110.715
17. 110.720
17. 110.725
17. 110.730
17. 110.735
17. 110.740
17. 110.745
17. 110.750
17. 110. 755
17. 110.760
17. 110.765
17. 110.770
17. 110.775
17. 110.780
17. 110.782
17. 110.783
17. 110.785
17. 110.790
17. 110,795
17. 110.800
17. 110.805
Sign.
Sign permit.
Site.
Site plan.
Site - specificamendment.
Stealth technology.
Storage, hazardous materials.
Storage, self - service.
Storage, vehicles and equipment.
Storage, indoor.
Storage, outdoor.
Storage container.
Street.
Structural alteration.
Structure.
Sub-area plan.
Support structure.
Temporary sign.
Temporary structure.
Temporary use.
Tract.
Use.
Repealed)
Veterinary clinic.
Water- dependent use.
Water- enjoyment use.
Water - oriented use.
Water - related use.
Wireless communication antenna array.
Wireless communicationfacility.
Wireless communication support structure.
Whipantenna.
Repealed)
Wrecking yard.
Yard.
Yard, front.
Yard, rear.
Yard, side.
Zone.
17. 110.005 Generally.
Except as provided in Section 17.450.010, for the purpose of this title, certain terms,
phrases, words and their derivatives shall be construed as specified in this section and
elsewhere in this title where specific definitions are provided. Terms, phrases and words
used in the singular include the plural and the plural the singular. Terms, phrases and
words used in the masculine gender include the feminine and the feminine the
masculine. The word"shall" is mandatory. The word"may" is discretionary. Where terms,
phrases and words are not defined,
they
shall have their
ordinary
accepted meanings
Chapter 17. 110 DEFINITIONS Page 4 of40
17.110.530
Nursing or rest home.
17.110.535 Open space.
17.110.540
Ordinary high water mark.
17.110.545 Owner.
17.110.547 Parabolicantenna.
17.110.548 Parcel.
17.110.550 Park.
17. 110.
555 Parking area, public.
17. 110.560
Parking space.
17. 110.565
Parking space, barrier free.
17.110.570
Parking space, compact.
17. 110.572 Performance based development (PBD).
17. 110.575 Perimeter setback.
17. 110.576 Permitted use.
17. 110.580 Person.
17. 110.585 Pet.
17. 110.590 Pet, non- traditional.
17. 110.591 Pharmacies.
17.110. 595 Pier.
17.110.600
Places ofworship.
1.
7_
110.605 ( Repealed)
17. 110.610
Planning commission.
17.110.615 Porch.
17.
110.620 Portable sign.
17. 110.625 Premises.
17. 110.630 Private airport or heliport.
17. 110.635 Prohibited use.
17. 110.637 Project permit or project permit application.
17.110.640 Publicfacilities.
17. 110.642 Race track, major.
17. 110.643 Race track, minor.
17. 110.645
Receiving areas and parcels.
17. 110.646
Recreational amenity, active.
17. 1. 10.647
Recreational facility.
17. 110.650 Recreational vehicle.
17. 110.655
Recreational vehicle camping park.
17. 110.660
Residential care facility.
17. 110.662 Restaurant.
17. 110.663 Restaurant, high - turnover.
17. 110.665 Rezone.
17. 110.666 Rural character.
17. 110.667 Rural cluster.
17. 110.668 Rural Wooded Incentive Programdevelopment.
17.
110.
669
Sending areas and parcels.
17. 110.670 Setback.
17. 110.673
Shipping container.
17. 110.674( Repealed)
Chapter 17. 110 DEFINITIONS
Page 25 of40
of residential and non- residential uses in a single or physically integrated groupof
buildings.(Ord. 367(2006) 5 ( part), 2006)
17.110.490 M obile home.
M obile home" means a factory-built single- family dwelling constructed prior toJune 15,
1976, to standards other than the Department of Housing and' Urban Development
M anufactured Home Construction and Safety Standards Act.
Ord. 415 (2008) 52, 2008: Ord. 367(2006) 5 ( part), 2006: Ord. 216(1998) 4(part),
1998)
17.110.493 M obile home park.
M obile home park" means a tract of land developed or operated as a unit with individual
leased sites and facilities to accommodate twoor more mobile homes or manufactured
homes.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998)
17.110.503 M ono-pole.
M ono-pole means a structure composed ofa single spire used tosupport
telecommunication equipment.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998)
17. 110.504M ovie /performance theater.
M ovie /performance theater" means a facility for showing films and performance art,
including accessory retail sales offood and beverages. This definition excludes adult
entertainment uses.
Ord. 419 (2008) 4, 2008: Ord. 367(2006) 5 ( part), 2006)
17.110.506 Net developable area.
Net developable area" means the site area after subtracting all rights-of -way, critical
areas(including bald eagle habitat regulations) and their buffers, stormwater controls,
recreational facilities, public facilities, community drainfields or other area -wide sanitary
sewer facilities, and open space.
Ord. 415 (2008) 53, 2008)
17.110.508 Nonconforming lot.
Nonconforming lot means a lot was lawfully created but does not conformto the lot
requirements of the zone in which it was located as established by this title or other
ordinances or amendments thereto.
Ord. 415 (2008) 54, 2008: Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part),
1998. Formerly 17. 110.505)
17. 110.510 Nonconforming use or structure.
Nonconforming use or structure" means a use of and or structurewhich was lawfully
established or built and which has been
lawfully
continued but which does not conformto
Chapter 17. 110 DEFINITIONS
Page 26 of40
the regulations established by this title or amendments thereto.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4.,(part), 1998)
17.110.515 Nuisance.
Nuisance" means in addition to those definitions contained in RCW 9. 66 and RCW 7.48,
as amended, any violation of this title shall constitute a nuisance, per se.
Ord. 367(2006) 5 ( part), 2006: Ord. 216(1998) 4(part), 1998)
17.110.520 Nursery, retail.
Nursery, retail" means an establishment where trees, shrubs and other plant materials
are grown, propagated and/or stored for purpose of sale directly tothe public.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4( part), 1998)
17. 110.525 Nursery, wholesale.
Nursery, wholesale" or "wholesale nursery" means an establishment where trees, shrubs
or other plants are propagated on the property and/or continuously growntoa larger size
for a period no less than one complete growing season and that is not open to the public
on a regular basis. Temporary outdoor stands for the periodicand occasional sale of
plants which are grown on the premises shall not disqualify an establishment for
definition as a wholesale nursery. No bark, mulch, fertilizer or other similar landscape
supply may be sold.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4( part), 1998)
17. 110. 530 Nursing or rest home.
See Section 17. 110. 190, Convalescent, nursing or rest home.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998)
17. 110.535 Open space.
Open space" shall mean land used for outdoor active and passive recreational purposes
or for critical area or resource land protection, including structures incidental tothese
open space uses, including associated critical area buffers, but excluding land occupied
by dwellings or impervious surfaces not related tothe open space uses and yards
required by this title for such dwellings or impervious surfaces. "Open space" is further
divided intothe following categories:
A. Common open space" shall mean space that may be used by all occupants of a
development complex or, if publicly dedicated, by the general public;
B. " Active recreational open space shall mean space that is intendedtocreate
opportunitiesfor recreational activity. Active recreational open space may be occupied by
recreational facilities such as ball fields, playground equipment, trails(pedestrian, bicycle,
equestrian or multi - modal),
swimming pools, and game courts or sculptures, fountains,
pools, benches or other outdoor furnishings;
C. " Passive open space" shall mean all common open space not
meeting
the definition
Chapter 17. 110 DEFINITIONS
Page 29 of40
Ord. 415 (2008) 57, 2008)
17. 110.575 Perimeter setback.
Perimeter setback means in a performance based development (PBD), the horizontal
distance between a building line and the exterior boundary of the PBD.
Ord. 367(2006) .5 ( part), 2006: Ord. 216(1998) 4(part), 1998)
17. 110.576 Permitted use.
Permitted use" means a land use allowed outright in a certain zone without a public
hearing or conditional use permit; provided, such use is developedin accordancewith
the requirements of the zone and general conditions of this title, and all applicable
provisions elsewhere in the county code.
Ord. 415 (2008) 58, 2008)
17.110.580 Person.
Person" means an individual, partnership, corporation, association, organization,
cooperative, tribe, public or municipal corporation, or agency of the state or local
governmental unit however designated.
Ord. 415 (2008) 59, 2008: Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part),
1998)
17.110. 585 Pet.
Pet" means any animal less than one hundredfifty pounds in weight, other than exotic
animals, kept for companionship, recreation or other non- agricultural purposes.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998)
17. 110.590 Pet, non- traditional.
Pet, non- traditional" or "non- traditional pet" means any pet other than a dog, cat, fish or
non- raptor bird.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998)
17.110.591 Pharmacies.
Pharmacies" shall mean businesses primarily engaged in the sale of prescription and
over - the - counter drugs, vitamins, first -aid supplies, and other health - related products.
Pharmacies that alsosell a wide variety of other types of merchandise, such as beauty
products, camera equipment, small consumer electronics, gift wares, housewares, and/or
cleaning supplies are considered"general merchandise stores."
Ord. 367(2006) 5 ( part), 2006: Ord. 311 ( 2003) [Attachment 7( part)], 2003)
17.110.595 Pier.
Pier" means a fixed structure built over tidelands or shorelands used as a landing for
marine or recreational purposes.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4( part), 1998)
Chapter 17. 1 10 DEFINITIONS
Page 30 of40
17. 110.600 Places ofworship.
Places ofworship means a permanently located building primarily used for religious
worship.
Ord. 367(2006) 5 ( part), 2006: Ord. 216(1998) 4(part), 1998)
17.110.605 (Repealed)*
Editor' s Note: Former Section 17. 110.605, " Performance based development
PBD)," was repealed
by
60' ofOrd. 415 (2008). Section 5 ( part) of Ord. 367(2006)
and
4(part) of Ord. 216(1998) were formerly codified in this section.
17.110.610 Planning commission.
Planning commission" means the KitsapCounty planning commission.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998).
17. 110.615 Porch.
Porch" means a covered attached structure providing a single entrance to a building,
which may be either open or enclosed up to one third.
Ord. 415 (2008) 61, 2008: Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4( part),
1998)
17. 110.620 Portable sign.
Portable sign" means a signwhich has no permanent attachment toa building or the
ground which include, but is not limitedto, A- frame, pole attachment, banners and reader
board signs.
Ord. 367(2006) 5 ( part), 2006: Ord. 216(
1998) 4( part), 1998)
17. 110.625 Premises.
Premises" means a tract or parcel of land with or without habitable buildings.
Ord. 367(2006)
5 (
part), 2006: Ord. 216( 1998) 4(part), 1998)
17.110.630 Private airport or heliport.
Private airport or heliport" means any runway, landing area or other facility designed and
used by individual property owners for private aircraft for the purposes of landing and
taking off, including associated facilities, such as hangars and taxiways.
Ord. 415 (2008) 62, 2008: Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4( part),
1998) .
17. 110.635 Prohibited use.
Prohibited use" means any use which is not expressly allowed and does not meet the
criteria under Section 17. 100.040.
Ord. 415 (2008) 63, 2008: Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part),
1998)
Chapter 17. 110 DEFINITIONS
Page 31 of40
17. 110.637 Project permit or project permit application
Project permit" or "project permit application" means any land use or environmental
permit or license required fromKitsap County for a project action, including, but not
limited to, building permits, subdivisions, binding site plans, performance based
developments, conditional uses, shoreline substantial development permits, permits or
approvals required by critical area ordinances, and site - specific rezones authorized by
the Kitsap County Comprehensive-Plan(Plan) or a sub-area plan, but excluding the
adoption or amendment of the Plan, a sub-area plan, or development regulations.
Ord. 367(2006) 5 ( part), 2006)
17. 110.640 Publicfacilities.
Publicfacilities" means streets, roads, highways, sidewalks, street and road lighting
systems, trafficsignals, domesticwater systems, stormand sanitary sewersystems,
waste handling facilities designated as publicfacilities in the comprehensive solidwaste
management plan, parks and recreational facilities, schools, publicworks storage
facilities and roadsheds, and utilities such as power, phone and cable television.
Ord. 415 (2008) 64, 2008: Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part),
1998)
17,110.642 Race track, major.
Race track, major" means a public or private facility developed for the purpose of
operating and/or competitive racing of automobiles, motorcycles or similar vehicles. The
facility may allow for up tosix thousand spectators and may contain an oval, drag strip,
road track and/or other course. Accessory uses may include the sale of concessions and
souvenirs, a recreational vehicle camping park, community events and/or vehicle safety
training.
Ord. 415 (2008) 65, 2008)
17.110.643 Race track, minor.
Race track, minor" means a publicor privately owned course designed for the operating
and/or racing of automobiles, motorcycles, all- terrain vehicles or similar vehicles along a
defined route that may include straight - aways, curves, jumps and/or other features.
Ord. 415 (2008) 66, 2008)
17.110.645 Receiving areas and parcels.
Receiving areas and parcels" means areaswithin an urban growth area that are
designated on the Kitsap County zoning mapor by further action of the board of county
commissioners, that may be eligible for additional residential development through the
transfer of development rights.
Ord. 367(2006) 5 ( part), 2006)
17.110.646 Recreational amenity, active.
A "recreational amenity, active" means an area within a development intended for use by
the residents, employees or patrons of the development for leisure activities. Such
Chapter 17. 110 DEFINITIONS Page 32 of40
facilities may include, but are not limited to, a paved sports court, children' s play
equipment, exercise fitness trail, community garden or gathering area with water service
or similar facility.
Ord. 415 (2008) 67, 2008)
17.110.647 Recreational facility.
Recreational facility" means a place designed and equippedfor the conduct of sports
and leisure -time activities. Examples include athleticfields, - batting cages, amusement
parks, picnic areas, campgrounds, swimming pools, driving ranges, skating rinks and
similar uses. Publicrecreational facilities are those owned by a government entity.
Ord. 415 (2008) 68, 2008: Ord. 367(2006) 5 ( part), 2006)
17. 110.650 Recreational vehicle.
Recreational vehicle" means a vehicle such as a motor home, travel trailer, truck and/or
camper combinationor camp trailer.which is designed for temporary human habitationfor
recreational or emergency purposes and which may be moved on public highways
without any special permit for long, wide or heavy loads.
Ord. 367(2006) 5 (part), 2006: Ord. 216( 1998) 4( part), 1998)
17.110.655 Recreational vehicle camping park.
Recreational vehicle camping park" means a tract of land under single ownershipor
unified control developed with individual sites for rent and containing roads and utilities to
accommodate recreational vehicles or tent campers for vacationor other similar
transient, short -stay purposes.
Ord. 415 (2008) 69, 2008: Ord. 367(2006) 5 ( pad), 2006: Ord. 216( 1998) 4(part),
1998)
17. 110.660 Residential care facility.
Residential care facility" means a facility that is the primary residence of a person or
persons whoare providing personal care, roomand board, and medical care for at least
five, but not more than fifteen, functionally disabled persons.
Ord. 415 (2008) 70, 2008: Ord. 367(2006) 5 ( part), 2006: Ord. 216(1998) 4( part),
1998)
17. 110.662 Restaurant.
Restaurant" means an establishment where food and/or beverages are served to
customers for compensation.
Ord. 415 (2008) 71, 2008)
17. 110.663 Restaurant, high - turnover.
High-turnover restaurant" means retail establishments providing food and/or beverages
for sale, andwhich are distinguished by one or more ofthe following:
A. Use of disposable food containers and utensils;
Chapter 17. 110 DEFINITIONS
Page 37 of40
structure.
Ord. 367(2006) 5 (part), 2006: Ord. 216(1998) 4(part), 1998)
17.110.710 Temporary sign.
Temporary sign" means a sign or balloons intendedfor use which shall not be displayed
for more than fourteen consecutive days and twice in a calendar year, which shall
include, but is not limited to, portable signs, banners, A- boards and pennants.
Ord. 415 (2008) 79, 2008: Ord. 367( 2006) 5 ( part), 2006: Ord. 216( 1998) 4( part),
1998)
17. 110.715 Temporary structure.
Temporary structure" means a structure which does not have or is not required by the
UniformBuilding Code to have a permanent attachment tothe ground. Temporary
structures are subject to building permits.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998)
17.110.720 Temporary use.
Temporary use means a use which may occur on a lot on a seasonal basis or for a
prescribed period oftime which usually wouldnot exceed one year' s duration.
Ord. 367(2006) 5 ( part), 2006: Ord. 216(1998) 4( part), 1998)
17.110.725 Tract.
Tract" means land reserved for specified uses including, but not limited to, reserve
development tracts, recreation, open space, critical areas, stormwater facilities, utilities
and access tracts. Tracts are not considered lots.
Ord. 415 (2008) 80, 2008)
17.110.730 Use.
Use" means the nature of occupancy, type of activity or character and formof
improvements towhich land is devoted.
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998)
17. 110.735 (Repealed)*
Editor' s Note: Former Section 17. 110.735, "
Use separation buffer," was repealed by
81 of Ord. 415 (2008). Section 5 ( part) of Ord. 367(2006) and 4( part) of Ord. 216
1998) were formerly codified in this section.
17.110. 740 Veterinary clinic.
Veterinary clinic" means the same as"animal hospital."
Ord. 367(2006) 5 ( part), 2006: Ord. 216( 1998) 4(part), 1998)
17. 110.745 Water - dependent use.
Water - dependent use" means a use or portion of a use which requires direct contact
Chapter 17. 381 ALLOWEDUSES
Sections:
17.381. 010.
17.381. 020
17.381. 030
17.381. 040
17.381. 050
17.381. 060
Chapter 17.381
ALLOWED USES
Categories of uses established.
Establishment ofzoning use tables.
Interpretation oftables.
Zoning use tables.
Footnotes for zoning use tables.
Provisions applying tospecial uses.
Page 1 of65
17.381. 010 Categories of uses established.
This chapter establishes permitted, conditional, and prohibited uses, by zone, for
all properties within. Kitsap County. All uses in a given zone are one of four
types:
A.
Permitted Use. Land uses allowed outright within a zone and subject to
provisionswithin Kitsap County Code.
B.
Administrative Conditional Use. Land uses which may be permitted within a
zoning designation following review by the director toestablish conditions
mitigating impacts ofthe use and to ensure compatibility with other uses in the
designation.
C.
Hearing Examiner Conditional Use. Land uses with special characteristics
that may not generally be appropriate within a zoning designation, but may be
permitted subject to review by the hearing examiner toestablish conditions to
protect public health, safety andwelfare.
D.
Prohibited Use. Land uses specifically enumerated as prohibited within a
zone.
Ord. 415 (2008) 140, 2008: Ord. 367(2006) 105 (part), 2006)
17.381. 020 Establishment of zoning use tables.
The tables in Section 17.381. 040 establish allowed uses in the various zoning
designations and whether the use is allowed as "Permitted," "Administrative
Conditional Use," or '
Hearing
Examiner Conditional Use." Useswith approval
processesthat will be determined at a future date are identified as"Reserved."
The zone is located at the topof the table andthe specific use is located on the
far -left of the vertical column of these tables.
Ord. 367(2006) 105 (part), 2006)
Chapter 17.381 ALLOWEDUSES
Page 2 of65
17.381. 030 Interpretation of tables.
A. Legend. The following letters have the following meanings when they
appear in the box at the intersection ofthe column and the row:
P Permitted Use
ACUP Administrative Conditional Use
Permit
C
Hearing Examiner Conditional
Use Permit
PBD Performance Based
Development
X
Prohibited Use
R
Reserved
B. Additional Use - Related Conditions. The small numbers (subscript) in a cell
indicate additional requirements or detailed informationfor uses in specific
zones. Those additional requirements can be found inthe tablefootnotes in
Section 17.381. 050. All applicable requirements shall govern a use whether
specifically identified in this chapter or not.
C. Unclassified Uses. Except as provided in Section 17. 100.040, Allowed
uses, if a use is not listed in the use column, the use is prohibited in that
designation.
Ord. 415 (2008) 141, 2008: Ord. 367(2006) 105 (part), 2006)
17.381. 040 Zoning use tables.
There arefive separate tables addressing the following, general land use
categories and zones:
A. Urban Residential Zones.
1. Urban Restricted( UR).
2. Urban Low Residential (UL).
3. Urban Cluster Residential (UCR).
4. Urban M ediumResidential (UM ).
5. Urban High Residential (UH).
6. Illahee Greenbelt Zone (1GZ).
Chapter. 17.381 ALLOWEDUSES
Page 3 of65
B.
Commercial and M ixed Use Zones.
1.
Neighborhood Commercial (NC).
2.
Urban Village Center (UVC).
3.
UrbanTownCenter (UTC).
4.
Highway Tourist Commercial ( HTC).
5.
Regional Commercial (RC).
6. M ixed Use (M U).
C. Airport and Industrial Zones.
1. Airport (A).
2. Business Park (BP).
3. Business Center (BC).
4. Industrial (IND).
D.
Limited Areas of M ore Intensive Rural Development (LAM IRD).
1.
M anchester Village Commercial (M VC).
2.
M anchester Village Low Residential (M VLR).
3. M anchester Village Residential (M VR).
4.
Port Gamble Rural HistoricTown Commercial ( RHTC).
5.
Port Gamble Rural HistoricTown Residential (RHTR).
6.
Port Gamble Rural HistoricTown Waterfront (RHTW).
7. Suquamish Village Commercial (SVC).
8.
Suquamish Village Low Residential (SVLR).
9.
Suquamish Village Residential (SVR).
E. Parks, Rural and Resource Zones.
1 Parks (P).
2. Forest Resource Lands (FRL).
Chapter 17.381 ALLOWEDUSES
3. M ineral Resource (M R).
4. Rural Protection( RP).
5. Rural Residential (RR).
6. Rural Wooded(RW).
7. Urban Reserve (URS).
Table 17.381. 040(A)
Urban Residential Zones.
Page 4 of65
Urban Low - Density
Residential
Urban M edium/High-
Density Residential
Use
UCR
48)
IGZ
60)
UR
19)
UL
19)(48)
UM
30)(47)(48)
UH
19)(47)(48
RESIDENTIAL USES
Accessory dwelling units
1)
P P P P P X
Accessory living quarters
1)
P P P P X
Accessory use or structure
1) ( 17) ( 18) ( 51)
P P P P P P
Adult family home
41)
X
ACUP
P
41)
ACUP
P
41)'
ACUP
P
41)
ACUP
P
41)
Bed and breakfast house P
ACUP
C
34)
ACUP
C
34)
ACUP
C
34)
ACUP.
C
34)
X
Caretaker' sdwelling
X X X X ACUP X
Convalescent home or
congregate care facility
ACUP X X C C ACUP
Cottage housing
developments
P ACUP ACUP ACUP ACUP X
Dwelling, duplex
P P
P
3) P)
P X
Dwelling, existing
P P P P P P
Dwelling, mufti-family
ACUP C C C P P
Chapter 17.381 ALLOWEDUSES
Page 5 of65
Dwelling, single- family
attached
P P P p P ACUP
Dwelling, single- family
detached
P P P P P ACUP
Guest house (1) P X P P P X
Home' business (1) ( 52) P P P P ACUP ACUP
Hotel /M otel X X X X X ACUP
M anufactured homes
P
43)
P
43)
P
43)
P
43)
P
43)
X
43)
M ixed use development
44)
X X X X X ACUP
M obile homes
C
43)
C
24)
43)
C
24)
43)
C
24) (43)
C
24) (43)
X
43)
Residential care facility
P ACUP ACUP ACUP P P
COM M ERCIAL/BUSINESS USES
Accessory use or structure
1) ( 17) ( 51)
P P P P P P
Adult entertainment (1) X X X X X X
Ambulance service X X X X X X
Auction house X X X X X X
Autoparts and accessory
stores
X X X X X X
COM M ERCIAL/BUSINESS USES (continued)
Automobile rentals X X X X X X
Automobile repair and car
washes
X X X X X X
Automobile service station
6)
X X X X X
Automobile, recreational
vehicle or boat sales
X X X X X X
Boat/marine supply stores
X X X X X X
Brew pubs X X X X X X
Chapter 17. 381 ALLOWEDUSES Page 6 of65
Clinic, medical X X X X X
ACUP
37)
Conference center X X X P X X
Customart and craft stores X X X X X X
Day -care center (14)
C C C C ACUP
ACUP
37)
Day -care center, family
14)
P C P P ACUP
ACUP
37)
Drinking establishments
X X X X X X
Engineering and
construction offices
X X X X X X
Espressostands (58) X X X X X
P
37)
Equipment rentals X X X X X X
Farmand garden
equipment and sales
X X X X X X
Financial, banking,
mortgage and title
institutions
X- X X X X X
General office and
management services
less than 4,000 s.f.
28)
X X
ACUP
X
General office and
management services
4,000 to9,999 s.f.
X X X X X
ACUP
37)
General office and
management services
10,000 s.f. or greater
X X X X X
ACUP
37)
General retail merchandise
stores less than4,000 s.f.
C
28)
X X X X
ACUP
37)
General retail merchandise
stores 4,000 to 9, 999 s.f.
x X X X X X
General retail merchandise
stores 10,000 to24,999
s.f.
X X X X X X
Chapter 17.381 ALLOWEDUSES
COM M ERCIAUBUSINESS USES (continued)
Page 7 of65
General retail merchandise
stores 25,000 s.f. or
greater
X X X X X X
Kennels or Pet day -cares
X X X X X X
Kennels, hobby
P P P P P X
Laundromats and laundry
services
C
28)
X X X X
ACUP
37)
Lumber and bulky building
material sales
X X X X X X
M obile home sales X X X X X X
Nursery, retail
X X X X X X
Nursery, wholesale
X X X X X X
Off- street private parking
facilities
X X X X X X
Personal services skin
care, massage, manicures,
hairdresser /barber
C X X X X
ACUP
37)
Pet
shop
retail and
grooming
X X X X X
ACUP
37)
Research laboratory
X X X X X X
Restaurants
28)
X X X X
ACUP
37)
Restaurants, high- turnover X X X X X X
Recreational vehicle
rentals
X X X X X X
Temporary offices and
model homes (27)
P P P P ACUP
ACUP
37)
Tourismfacilities, including
outfitter and guide facilities
X X X X X X
Tourismterminals,
including seaplane and
tour -boat terminals
X X X X X X
Transportationterminals X X X X X X
Chapter 17. 381 ALLOWEDUSES Page 8 of65
Veterinary clinics /Animal .
hospitals
X X X X X
C
9) ( 37)
RECREATIONAL/CULTURAL USES
Accessory use or structure-
1)( 17)( 51)
P P P P P P
Amusement centers X X X X X X
Carnival or Circus X X X X X X
Club, civic or social (12) ACUP
12) 2)
C ACUP ACUP
Golf courses ACUP C C C C ACUP
M arinas ACUP C C C C C
M ovie /Performance
theaters, indoor
X X X X X X
M ovie /Performance
theaters, outdoor
X X X X X ACUP
M useum, galleries,
aquarium, historic or
cultural exhibits
X X X X X ACUP
Parks and open space P P P P P P
Race track, major X X X X X X
Race track, minor X X X X X X
Recreational facilities,
private
ACUP C C C C ACUP
Recreational facilities,
public
P P P P P ACUP
Recreational vehicle
camping parks
X C C C X X
Zoo X X X X X X
INSTITUTIONAL USES .
Accessory use or structure
1)( 17)( 51)
P P P P P
Government/Public
structures
ACUP ACUP ACUP ACUP ACUP ACUP
Chapter 17.381 ALLOWEDUSES
Page 9 of65
Hospital
X X X X X C
Places ofworship(12) C C C
C C
ACUP
Private or publicschools
20)
C C C C C C
Publicfacilities,
transportation and parking
facilities, and electric power
and natural gas utility
facilities, substations, ferry
terminals, and commuter
park - and-ride Tots( 16)
ACUP C C C C
ACUP
INDUSTRIAL USES
Accessory use or structure
1) ( 17) (51)
P P P P
P P
Air pilot training schools
X X X X X X
Assembly and packaging
operations
X X X X X X
Boat yard
X X X X X X
Cemeteries, mortuaries,
and crematoriums (10)
C C C C C C
Cold storage facilities X X X X X
X
Contractor' s storage yard X X X X X
X
Food production, brewery
or distillery
X X X X
X X
Fuel distributors
X X X X X
X
Helicopter pads X X X X X X
M anufacturing and
fabrication, light
X X X X X
M anufacturing and
fabrication, medium
X X X X X X
M anufacturing and
fabrication, heavy
X X X X X X
M anufacturing and
fabrication, hazardous
X X X X_ X X
Chapter 17.381 ALLOWEDUSES Page 10 of65
Recycling centers
X X X X X X
Rock crushing
X X X X X X
Slaughterhouse or animal
processing
X X X X X X
Storage, hazardous
materials
X X X X X X
Storage, indoor X X X X X X
Storage, outdoor X X X X X X
Storage, self - service
40) 40) 4d) 44) 40)
C
Storage, vehicle and
equipment (1)
X
18)
X
18)
X
18)
X
18)
X
18)
X
18)
Topsoil production and/or
stumpgrinding
X X X X X X
Transshipment facilities,
including docks, wharves,
marine rails, cranes, and
barge facilities
X X X X X X
INDUSTRIAL USES (continued) .
Uses necessary for airport
operation such as runways,
hangars, fuel storage
facilities, control towers,
etc. (13)
X X X X X X
Warehousing and
distribution
X X X X X X
Wrecking yards andjunk
yards (1)
X X X X X X
RESOURCE LANDUSES
Accessory use or structure
1) ( 17) ( 51)
P P P P P P
Aggregate extractions sites X X X X X X
Agricultural uses (15) X P P P P P
Aquaculture practices C C C C C C
Chapter 17.381 ALLOWEDUSES Page 11 of65
Forestry
X P P P P P
Shellfish /fish hatcheries
and processing facilities
X X X X X X
Temporary stands not
exceeding 200 square feet
in area and exclusively for
the sale of agricultural
products grownon site (27)
X
P
2)
P
2)
P
2)
P
2)
P
2)
17.381. 040(B)
Commercial and M ixed Use Zones.
Low Intensity
Commercial/M ixed
Use
High- Intensity Commercial/M ixed
Use
Use
NC)
19) ( 30)
48) ( 57)
UVC
30) ( 48)
57)
UTC
48)
57)
HTC
19) ( 29)
30) ( 48)
57)
RC
19) (48)
57)
M U
19)
44)
45)
48)
57)
RESIDENTIAL USES
Accessory dwelling
units
X X R X X X
Accessory living
quarters
X X R X X X
Accessory use or
structure (17) ( 18) ( 51)
P P R P P P
Adult family home
X
ACUP
P
41)
R
ACUP
P
41)
ACUP
P
41)
ACUP
P
41)
Bed and breakfast
house
ACUP
C
34)
ACUP
C
34)
R X X X
Caretaker' s dwelling
ACUP ACUP R ACUP ACUP ACUP
Convalescent home or
congregate care facility
ACUP R ACUP ACUP ACUP
Cottage housing
X ACUP R X X ACUP
Chapter 17.381 ALLOWEDUSES Page 12 of65
developments
Dwelling, duplex
X ACUP R X X X
Dwelling, existing
P P R P P P
Dwelling, multi- family
X. ACUP R ACUP ACUP ACUP
Dwelling, single - family
attached
X P R ACUP ACUP ACUP
Dwelling, single- family
detached
X P R X X X
Guest house X X R X X X
Home business (1)
52)
ACUP P R X X ACUP
Hotel/M otel C ACUP R P P ACUP
M anufactured homes X
43}
R X X X
M ixed use
development (44) (49)
ACUP ACUP R ACUP ACUP ACUP
M obile homes X X(43) R X X X
Residential care facility
X ACUP R ACUP ACUP ACUP
COM M ERCIAL/BUSINESS USES
Accessory use or
structure (1) ( 17) ( 51)
P P R P P P
Adult entertainment (1) X X R C C X
Ambulance service C C R P P ACUP
Auction house (.55) X ACUP R P P X
Auto parts and
accessory stores
P X R P P ACUP
COM M ERCIAL/BUSINESS USES (continued)
Automobile rentals
56) 56)
R P
P
61)
ACUP
Automobile repair and
car washes
ACUP
54)
X R P P ACUP
Automobile service
station(6)
ACUP X R P
P
61)
X
Chapter 17.381 ALLOWEDUSES
Page 13 of65
Automobile,
recreational vehicle or
boat sales
X X R ACUP ACUP X
Boat/marine supply
stores
X X R P
P ACUP
Brew pubs . ACUP ACUP R P P ACUP
Clinic, medical ACUP ACUP R P
P ACUP
Conference center X P R P P ACUP
Customart and craft
stores
P
54)
P
54)
R P P ACUP
Day -care center (14)
P
54)
P
54)
R P P ACUP
Day -care center, family
14)
ACUP
54)
ACUP
54)
R P
P
61)
P
Drinking
establishments
C ACUP R C C C
Engineering and
construction offices
P
54)
P
54)
R P P ACUP
Espresso stands (33)
58)
P X R P
P
61)
P
Equipment rentals X ACUP R P
61)
ACUP
Farmand garden
equipment and sales
X X R P
P
61)
ACUP
Financial, banking,
mortgage and title
institutions
P
54)
P
54)
R P P ACUP
General office and
management services
less than 4,000 s.f.
P P R P P ACUP
General office and
management services
4,000 to 9,999 s.f.
ACUP ACUP
R P P ACUP
General office and
management services
10,000 s.f. or greater
X ACUP R P P ACUP
Chapter 17. 381 ALLOWEDUSES
COM M ERCIAL/BUSINESS USES (continued)
Page 14 of65
General retail
merchandise stores
less than 4,000 s.f.
P P R P P ACUP
General retail
merchandise stores
4,000 to9,999 s.f.
ACUP ACUP R P P ACUP
General retail
merchandise stores
10,000 to24,999 s.f.
C C R P P ACUP
General retail
merchandise stores
25,000 s.f. or greater
X X R
ACUP
62)
ACUP
62)
X
Kennels or Pet day-
cares
C X R C
C
61)
C
Kennels, hobby
P P R X X P
Laundromats and
laundry services
P
54)
P
54)
R P P ACUP
Lumber and bulky
building material sales
X X R
ACUP
42)
ACUP
42) ( 61)
X
M obile home sales X X R ACUP
ACUP
Nursery, retail
ACUP ACUP R P P ACUP
Nursery, wholesale
ACUP ACUP R P
1) 6
ACUP
Off- street private
parkingfacilities
ACUP ACUP R P P ACUP
Personal services
skin care, massage,
manicures,
hairdresser /barber
P
54)
P
54)
R P P ACUP
Pet
shop
retail and
grooming
ACUP ACUP R P P ACUP
Research laboratory
X X R X X X
Restaurants
54) 54)
R P P ACUP
Chapter 17.381 ALLOWEDUSES
Page 15 of65
Restaurants, high-
tumover
C ACUP R P
63)
ACUP
Recreation vehicle
rentals
X R ACUP
ACUP
61)
X
Temporary offices and
model homes
X X R X X X
Tourismfacilities,
including outfitter and
guide facilities
X P R P P X
COM M ERCIALBUSINESS USES (continued)
Tourismfacilities,
including seaplane and
tour -boat terminals
X X R ACUP ACUP X
Transportation
terminals
C C R ACUP
ACUP ACUP
Veterinary
clinics /Animal hospitals
ACUP ACUP R P P C
RECREATIONAL/CULTURAL USES
Accessory use or
structure (1) ( 17) (51)
P P R P P P
Amusement centers C
C
11)
R
ACUP
11)
ACUP
11)
ACUP
11)
Carnival or Circus C
ACUP
11)
R
ACUP
11)
ACUP
11) ( 61)
ACUP
11)
Club, civicor social
12)
ACUP ACUP R P P ACUP
Goff courses ACUP ACUP X ACUP
ACUP
M arinas ACUP C X ACUP
ACUP
M ovie /Performance
theaters, indoor
ACUP P R P P ACUP
M ovie /Performance
theaters, outdoor
X ACUP R C ACUP C
M useum, galleries,
Chapter 17. 381 ALLOWEDUSES Page 16 of65
aquarium, historicor
cultural exhibits
ACUP P R P P ACUP
Parks and open space P P P P P P
Race track, major X X X C
61) 1)
X
Race track, minor X X X X X X
Recreational facilities,
private
ACUP ACUP R ACUP ACUP ACUP
Recreational facilities,
public
ACUP ACUP R ACUP ACUP ACUP
Recreational vehicle
camping parks
C X R C X X
Zoo X X R C
6)
X
INSTITUTIONAL USES
Accessory use or
structure (1) ( 17) ( 51)
P P R P P
GovemmentlPublic
structures
ACUP ACUP R ACUP ACUP ACUP
Hospital X C R ACUP ACUP C
INSTITUTIONAL USES (continued)
Places ofworship(12)
C C R ACUP ACUP C
Private or public
schools (20)
C C R ACUP ACUP C
Publicfacilities,
transportation and
parking facilities,
electricpower and
natural gas utility
facilities, substations,
ferry terminals, and
commuter park -and-
ride lots(16)
ACUP ACUP R ACUP ACUP ACUP
Accessory use or
structure (1) ( 17) ( 51)
P P R P P P
Chapter 17.381 ALLOWEDUSES
Page 17 of65
Air pilot training
schools
X P R P P X.
Assembly and
packaging operations
C R C
C
61)
C
Boat yard X X R ACUP
ACUP
61)
X
Cemeteries,
mortuaries, and
crematoriums (10)
C C R ACUP
ACUP
61.)
X
Cold storage facilities X X R X X X
Contractor' s storage
yard(21)
X X R X X X
Food production,
brewery or distillery
X X R C
C
61)
C
Fuel distributors X X R C
61)
Helicopter pads (13) X C R C C C
M anufacturing and
fabrication, light
C R C
C
61)
X
M anufacturing and
fabrication, medium
X X R X X X
M anufacturing and
fabrication, heavy
X X R X X X
M anufacturing and
fabrication, hazardous
X X R X X X
Recycling centers
X X R X X X
Rock crushing
X X R X X X
Slaughterhouse or
animal processing
X X R X X X
Storage, hazardous
materials
X R X X X
INSTITUTIONAL USES (continued)
Storage, indoor X X R C
61)
Chapter 17.381 ALLOWEDUSES Page 18 of65
Storage, outdoor X X R X X X
Storage, self - service C C R ACUP
ACUP
61)
ACUP
40)
Storage, vehicle and
equipment (1).
X X R ACUP X X
Topsoil production,
stumpgrinding
X X R X X X
Transshipment
facilities, including
docks, wharves,
marine rails, cranes,
and barge facilities
X X R X X X
Uses necessary for
airport operation such
as runways, hangars,
fuel storage facilities,
control towers, etc.
13)
X X R X X X
Warehousing and
distribution
X X R X X X
Wrecking yards and
junk yards (1)
X X R X X X
RESOURCE LANDUSES
Accessory use or
structure (1) ( 17) ( 51)
P P R P P P
Aggregate extraction
sites
X X R X X X
Agricultural uses (15) P X R P P P
Aquaculture practices C C R C C C
Forestry
P X R P P P
Shellfish/fish
hatcheries and
processing facilities
X X R X X X
Temporary stands not
exceeding 200 square
feet in area and P
X R
P P P
Chapter 17.381 ALLOWEDUSES
exclusively for the sale
of agricultural products
grownon site (27)
2)
2) 2)
Page 19 of65'
2)
Table 17.381. 040(C)
Airport and Industrial Zones.
Airport industrial
Use A
BC
31) ( 42)
BP
IND
32) (42)
RESIDENTIAL USES
Accessory dwelling units
X X X X
Accessory living quarters
X X X X
Accessory use or
structure (1) ( 17) ( 51)
P P ACUP ACUP
Adult family home
X
ACUP
P
41)
ACUP
P
41)
ACUP
P
41)
Bed and breakfast house X X X X
Caretaker' s dwelling
ACUP P P P
Convalescent home or
congregate care facility
X X X X
Cottage housing
developments
X X X X
Dwelling, duplex
X X- X X
Dwelling, existing
P P P P
Dwelling, multi - family
X X X X
Dwelling, single - family
attached
X X X
Dwelling, single- family
detached
X X X X
Guest house X X X X
Horne business X X X X
Hotel /M otel X X X X
M anufactured homes X X X X
Chapter 17.381 ALLOWEDUSES
Page 20 of65
M ixed use development X X X X
M obile homes X X X X
Residential care facility
X X X X
COM M ERCIAL/BUSINESS USES
Accessory use or
structure (1) ( 17) ( 51)
P P P P
Adult entertainment (1) X C X C
Ambulance service X P ACUP ACUP
Auction house
X ACUP ACUP P
Autoparts and accessory
stores
X X X X
Automobile rentals X X X X
Automobile repair and
car washes
X
61)
ACUP
P
33)
Automobile service
station(6)
X
C
33)
C
33)
P
33)
COM M ERCIAL/BUSINESS USES (continued)
Automobile, recreational
vehicle or boat sales
X
ACUP
35)
X
ACUP
35)
Boat/marine supply
stores
X X X X
Brew pubs X
ACUP
33)
ACUP.
33)
ACUP
Clinic, medical X P ACUP C
Conference center X X X X
Customart and craft
stores
X X X X
Day -care center (14)
X
P
33)
P
33)
P
33)
Day -care center, family
14) _
X
P
33) ( 61)
P
33)
X
Drinking establishments
C
33) 33)
X
Chapter 17.381 ALLOWEDUSES
Page 21 of65
Engineering and
construction offices
X P
P
33)
P
33)
Espressostands (58) X
P
33) ( 61)
P
33)
P
33)
Equipment rentals X P P P
Farmand garden
equipment and sales
X X X X
Financial, banking,
mortgage andtitle
institutions
X P
P
33)
ACUP
33)
General office and
management services
Tess than4,000 s.f.
X P P
P
33)
General office and
management services
4,000 to 9,999 s.f.
X P P X
General office and
management services
10,000 s.f. or greater
X P P X
General retail
merchandise stores
than 4,000 s.f.
X
P
33)
less
P
33)
ACUP
33)
General retail
merchandise stores
4,000 to9,999 s.f.
X X X X
General retail
merchandise stores
10,000 to24,999 s.f.
X X X X
General retail
merchandise stores
25,000 s.f. or greater
X X X X
Kennels or Pet day -cares
X P ACUP ACUP
Kennels, hobby
X X X X
COM M ERCIAL/BUSINESS USES (continued)
Laundromats and laundry
services
P
33)
P ACUP
Chapter 17.381 ALLOWEDUSES Page 22 of65
Lumber and bulky
building material sales
X
P
61)
X P
M obile home sales X X X X
Nursery, retail
X X X X
Nursery, wholesale
X X X X
Off - street private parking
facilities
X X X X
Personal services skin
care, massage,
manicures,
hairdresser /barber
X X X X
Pet
shop
retail and
grooming
X X X X
Research laboratory
X P P P
Restaurants ACUP
P
33)
C
33)
ACUP
33)
Restaurants, high-
turnover (33)
P
59)
P
59)
P
59)
P
59)
Recreational vehicle
rentals
X
ACUP
61)
ACUP ACUP
Temporary offices and
model homes (27)
X X X X
Tourismfacilities,
including outfitter and
guidefacilities
P P P ACUP
Tourismfacilities,
including seaplane and
tour boat terminals
ACUP X X X
Transportation terminals ACUP P X ACUP
Veterinary clinics /Animal
hospitals
X P ACUP ACUP
RECREATIONAL/CULTURAL USES
Accessory use or
structure (1) ( 17)
P P P P
C
Chapter 17.381 ALLOWEDUSES
Page 23 of65
Amusement centers X X X 11)
Camival or Circus X- X X
ACUP
11)
Club, civicor social (12) ACUP ACUP X ACUP
Golf courses X X X X
M arinas X X X C
M ovie /Performance
theaters, indoor
X X X X
RECREATIONAL/CULTURAL USES (continued)
M ovie /Performance
theaters, outdoor
X C ACUP X.
M useum, galleries,
aquarium, historicor
cultural exhibits
ACUP P ACUP X
Parks and open space P P P P
Race track, major X C C
Race track, minor X X X C
Recreational facilities,
private
X P C C
Recreational facilities,
public
C P C C
Recreational vehicle
camping parks
X X X X
Zoo X. X X X
INSTITUTIONAL USES
Accessory use or
structure (1) ( 17) ( 51)
P P ACUP ACUP
Government/Public
structures
P P P P
Hospital X C C C
Places of worship(12)
X C X C
Private or publicschools
X P ACUP ACUP
Chapter 17.381 ALLOWEDUSES Page 24 of65
20)
Publicfacilities and
electric power and
natural gas utility
facilities, substations,
ferry terminals, and
commuter park- and-ride
lots( 16)
C ACUP ACUP ACUP
INDUSTRIAL USES
Accessory use or
structure (1) ( 17) ( 51)
P P P ACUP
Air pilot training schools
P P P P
Assembly and packaging
operations
ACUP P X ACUP
Boat yard X
61)
ACUP ACUP
Cemeteries, mortuaries,
and crematoriums (10)
X
ACUP
61)
X ACUP
Cold storagefacilities X X ACUP P
Contractor's storage yard
21)
X
P
61)
X P
Food production, brewery
or distillery
X ACUP ACUP C
INDUSTRIAL USES (continued)
Fuel distributors X
61)
C
Helicopter pads (13) P ACUP X ACUP
M anufacturing and
fabrication, light
ACUP P P P
M anufacturing and
fabrication, medium
ACUP
C .
52) ( 61)
ACUP P
M anufacturing and
fabrication, heavy
X X X ACUP
M anufacturing and
fabrication, hazardous
X X X C
r
Chapter 17.381 ALLOWEDUSES
Page 25 of65
Recycling centers
X X X ACUP
Rock crushing
X X X- C
Slaughterhouse or animal
processing
X X X C
Storage, hazardous
materials
X X X C
Storage, indoor C
61)
P p
Storage, outdoor C
ACUPP
X P
Storage, self- service X
A
6)
X P
Storage, vehicle and
equipment (1)
X
ACUP
61)
X P
Topsoil production,
stump grinding
X X X ACUP
Transshipment facilities,
including docks, wharves,
marine rails, cranes, and
barge facilities
X
P
61)
C C
Uses necessary for
airport operation such as
runways, hangars, fuel
storage facilities, control
towers, etc. (13)
P X X C
Warehousing and
distribution
ACUP
P
61)
P P
Wrecking yards andjunk
yards (1)
X X X C
RESOURCELANDUSES
Accessory use or
structure (1) ( 17) ( 51)
P P ACUP ACUP
Aggregate extractions
sites
X P X C
Agricultural uses (15) X P P P
Chapter 17.381 ALLOWEDUSES
RESOURCELANDUSES (continued)
Page 26 of65
Aquaculture practices X P X C
Forestry
P P P P
Shellfish/fish hatcheries
and processing facilities
X X X C
Temporary stands not
exceeding 200 square
feet in area and
exclusively for the sale of
agricultural products
grownon site (27)
P
2)
P
2)
P
2)
P
2)
Table 17.381. 040(D)
Limited Areas of M ore Intensive Rural Development (LAM IRD).
Keyport Rural Village
Zoning
M anchester LAM IRD Rural Historic1
Use KVC
KVLR
2 du/
acre)
KVR
5 du/
acre)
M VC
50)
M VLR M VR
RHTC
25)
RHTR
25)
RESIDENTIAL USES
Accessory dwelling
units (1)
ACUP P P X C C C C
Accessory living
quarters ( 1)
ACUP P P X P P C P
Accessory use or
structure (1) ( 17)
18) ( 51)
ACUP P P ACUP P P P P
Adult family home
ACUP CUP CUP
ACUP
P
41)
ACUP
P
41)
ACUP
P
41)
ACUP
P
41)
ACUP
P
41)
Bed and breakfast
house
ACUP
34)
P
34)
P
34)
ACUP
C
34)
ACUP
C
34)
ACUP
C.
34)
ACUP
C
34)
ACUP
C
34)
Caretaker' s
dwelling
ACUP X X X X X P X
Convalescent
home or
Chapter 17.381 ALLOWEDUSES
Page 27 of65
congregate care
facility
ACUP CUP CUP ACUP X X ACUP C
Cottage housing
developments
CUP ACUP ACUP X X X X C
Dwelling, duplex
CUP
ACUP ACUP
3)
X
3 ) 3
P P
Dwelling, existing
P P P P P P P P
Dwelling,
multifamily
CUP CUP CUP X X X ACUP ACUP
Dwelling, single-
family attached
CUP
26)
P P
P
26)
P P P P
Dwelling, single-
familydetached
CUP
26)
P P
P
26)
P P P P
Guest house (1) X X X X P P P P
Home business (1)
52)
ACUP ACUP ACUP X ACUP ACUP P P
Hotel /motel ACUP X X C X X ACUP X
RESIDENTIAL USES (continued)
M anufactured
homes
CUP
43)
ACUP
43)
ACUP
43)
X
P
43)
P
43)
ACUP
43)
ACUP
43)
M ixed use
development (44)
ACUP X X ACUP. X X ACUP X
M obile homes
CUP
43)
CUP
43)
CUP
43)
X X X X X
Residential care
facility
ACUP ACUP ACUP X X X X X
COM M ERCIAL/BUSINESS USES
Accessory use or
structure (1) ( 17)
51)
ACUP P P ACUP P P P P
Adult entertainment
1)
X X X X X X X X
Ambulance service X X X X X X X X
Auction house X X X X X X X X
Chapter 17.381 ALLOWEDUSES
Page 28 of65
Autoparts and
accessory stores
ACUP X X ACUP X X X X
Automobile rentals CUP X X X X X X X
Automobile repair
and car washes
ACUP X X X X X ACUP X
Automobile service
station(6)
X X X X X X ACUP X
Automobile,
recreational vehicle
or boat sales
X X X X X X X X
Boat/marine supply
stores
ACUP X X ACUP X X ACUP X
Brew pubs ACUP X X X X X ACUP X
Clinic, medical ACUP X X ACUP X X ACUP X
COM M ERCIALJBUSINESS USES (continued)
Conference center X X X X X X ACUP X
Customart and
craft stores
ACUP X X ACUP X X ACUP . X
Day -care center
14)
CUP CUP CUP C C C ACUP C
Day -care center,
family (14)
CUP CUP CUP C C C ACUP C
Drinking
establishments
CUP X X C X X C X
Engineering and
construction offices
ACUP X X ACUP X X ACUP X
Espressostands -
58)
ACUP X X ACUP X X ACUP X
Equipment rentals X X X X X X X X
Farmand garden
equipment and.
sales
CUP X X X X X X X
Financial, banking,
mortgage and title
institutions
ACUP X
X ACUP X X ACUP X
Chapter 17.381 ALLOWEDUSES
Page 29 of65
General office and
management
services less
than 4,000 s.f.
ACUP X X ACUP X X ACUP X
General office and
management
services 4,000 to
9,999 s.f.
ACUP X X ACUP X X
X38)
X
General office and
management
services 10,000
s.f. or greater
ACUP X X ACUP X X X X
General retail
merchandise
stores less than
4, 000 s.f.
ACUP X X ACUP X X ACUP X
COM M ERCIAL/BUSINESS USES (continued)
General retail
merchandise
stores 4,000 to
9,999 s.f.
ACUP X X ACUP X X PBD X
General retail
merchandise
stores 10, 000 to
15,000 s.f.
CUP X X X X X X X
General retail
merchandise
stores 15,001 to
24,999 s. f.
CUP X X X X X X X
General retail
merchandise
stores 25,000 s.f.
or greater
X X X X X X X X
Kennels or Pet
day -cares (1)
CUP X X X C C X X
Kennels, hobby
CUP CUP CUP X P P X P
Laundromats and
laundry services
CUP X X C X X ACUP X
Chapter 17. 381 ALLOWEDUSES Page 30 of65.
Lumber and bulky
building material
sales
X X X X X X X X
M obile home sales X X X X. X X X X
Nursery, retail
ACUP CUP CUP ACUP C C ACUP : X
Nursery, wholesale ACUP
CUP CUP. ACUP C C ACUP X
Off- street private
parking facilities
CUP X X ACUP X X ACUP X
Personal services
skin care,
massage,
manicures,
hairdresser /barber
ACUP X X ACUP X X ACUP X
Pet
shop
retail
and grooming
ACUP X X ACUP X X ACUP X
Research
laboratory
CUP X X X X X X X
Restaurants ACUP X X ACUP X X ACUP X
COM M ERCIAUBUSINESS USES (continued)
Restaurants, high-
tumover
CUP X X C X X C X
Recreational
vehicle rental
X X X X X X X X
Temporary offices
and model homes
27)
CUP X X X ACUP ACUP X X
Tourismfacilities,
including outfitter
and guide facilities
CUP X X X X X X X
Tourismfacilities,
including seaplane
and tour boat
terminals
CUP X X X X X X X
Transportation
terminals
X X X X X X X X
Veterinary
r
Chapter 17.381 ALLOWEDUSES
Page 31 of65
clinics/animal
hospitals
ACUP X X ACUP X X ACUP X
RECREATIONALICULTURALUSES
Accessory use or
structure (1) ( 17)
51)
ACUP P P ACUP P P P P
Amusement
centers
CUP
11)
X X
C
11)
X X
X
11)
X
Carnival or circus
111)
X X
11)
X X
1 )
X
Club, civicor social
12)
ACUP X X ACUP. ACUP ACUP ACUP C
Golf courses CUP X X X C C ACUP C
M arinas ACUP X X ACUP X X X X
M ovie/Performance
theaters, indoor
CUP X X C X X ACUP X
RECREAT1ONAL/CULTURAL USES (continued)
M ovie /Performance
theaters, outdoor
CUP X X X X X X X
M useum, galleries,
aquarium, historic
or cultural exhibits
ACUP X X ACUP X X ACUP C
Parks and open
space
P P P P P P P P
Race track, major X X X X X X X X
Race track, minor X X X X X X X X
Recreational
facilities, private
CUP CUP CUP C C C ACUP C
Recreational
facilities, public
CUP CUP CUP C C C ACUP C
Recreational
vehicle camping
parks
X X X X X X X X
Zoo ACUP X X X X X X X
Chapter 17.381 ALLOWEDUSES
INSTITUTIONAL USES
Page 32 of65
Accessory use or
structure (1) ( 17)
51)
ACUP P P ACUP P P' P P
Govemmentlpublic
structures
ACUP CUP CUP ACUP C C ACUP C
Hospital X X X X X X X X
Places of worship
12)
ACUP CUP CUP ACUP C C C C
Private or public
schools (20)
ACUP CUP CUP ACUP C C ACUP C
Publicfacilities and
electric power and
natural gas utility
facilities,
substations, ferry
terminals, and
commuter park -
and-ride lots( 16)
ACUP CUP CUP . ACUP C C PBD X
INDUSTRIALUSES
Accessory use or
structure (1) ( 17)
51)
ACUP P P ACUP P P P P
Air pilot training
schools
X X X X X X X X
Assembly and
packaging
operations
X X X X X X PBD X
Boatyard ACUP X X X X X ACUP X
Cemeteries,
mortuaries, and
crematoriums (10)
CUP X X X C C X X
Cold storage
facilities
X X X X X X X X
Contractor' s
storage yard(21)
CUP X X X C C X X
Chapter 17. 381 ALLOWEDUSES
Page 33 of65
Food production,
brewery pr distillery
X X X X X X C X
Fuel distributors X X X X X X X X
Helicopter pads .
13)
X X X X X X X X
M anufacturing and
fabrication, light
X X X X X X PBD X
M anufacturing and
fabrication, -
medium
X X X X
X
X X X
M anufacturing and
fabrication, heavy
X X X X X X X X
M anufacturing and
fabrication,
hazardous
X X X X X X X X
Recycling centers
X X X X X X X X
Rock crushing
X X X X X X X X
INDUSTRIALUSES (continued)
Slaughterhouse or
animal processing
x X X X X X X X
Storage,
hazardous
materials
X X X X X X X X
Storage, indoor X X X X X X X X
Storage, outdoor X X X X X X X X
Storage, self-
service
CUP X X X X X X X
Storage, vehicle
and equipment (1)
X
X
18)
X X
X
18)
X
18)
X
X
18)
Topsoil
production, stump
grinding
X X X X X X X X
Transshipment
facilities, including
docks, wharves,
X X X X X X X X
Chapter 17. 381 ALLOWEDUSES
Page 34of65
marine rails,
cranes, and barge
facilities
Uses necessary for
airport operation
such as runways,
hangars, fuel
storage facilities,
control towers, etc.
13)
X X X X X X X X
Warehousing and
distribution
X X X X X X X X
Wrecking yards
andjunk yards (1)
X X X X X X X X
RESOURCE LANDUSES
Accessory use or
structure (1) ( 17)
51)
ACUP P P- ACUP P P P P
Aggregate
extractions sites
X X X X X X X X
Agricultural uses
15)
X P P X P P P P
Aquaculture
practices
X CUP CUP X C C X X
Forestry
X X X X P P P P
Shellfish /fish
hatcheries and
processing facilities
CUP X X X X X X X
Temporary stands
not exceeding 200
square feet in area
and exclusively for
the sale of
agricultural
products grownon
site (27)
ACUP
ACUP
2)
ACUP
2)
X
P
2)
P
2)
P
2)
P
2)
Table 17.381. 040(E)
Chapter 17. 381 ALLOWEDUSES
Parks, Rural and Resource Zones,
Page 35 of65
Use
Parks Resource Rural
Parks FRL M R URS RP RR RW
RESIDENTIAL USES
Accessory dwelling units
1)
X X X C C C
Accessory living
quarters (1)
X X X P P P P.
Accessory use or
structure( 1)( 17)( 18)
51) .
X P P P P P P
Adult family home
X X X
ACUP
P
41)
ACUP
P
41)
ACUP
P
41)
ACUP
P
41)
Bed and breakfast
house
X X X
ACUP
C
34)
ACUP
C
34)
ACUP
C
34)
ACUP
C
34)
Caretaker' s dwelling
P X X X X X X
Convalescent home or
congregate care facility
X X X X X X X
Cottage housing
developments
X X X X X X X
Dwelling, duplex
X
3)
X
3) 3) 3) 3)
Dwelling, existing
X P P P P P P
Dwelling, multi - family
X X X X X X X
Dwelling, single - family
attached
X C X C C C X
Dwelling, single - family
detached
X C X P P P P
Guest house (1) X X X P P P P
Home business (1) ( 52) X
3}
X ACUP ACUP ACUP ACUP
Hotel/M otel X X X X X X X
Chapter 17.381 ALLOWEDUSES
Page 36of65
M anufactured homes X
43)
X
3) 43) 43)
X
M ixeduse development
44)
x X X X X X X
M obile homes X
3
P
3 43) 3
P
Residential carefacility
X X X X X X X
COM M ERCIAL/BUSINESS USES .
Accessory use or
structure (1) ( 17) ( 51)
P P P P P' P P
Adult entertainment (1) X X X X X X X
Ambulance service X X X X X X X
Auction house X X X X X X X
Autoparts and
accessory stores
X X X X X X X
Automobile rentals X X X X X X X
Automobile repair and
car washes
X X X X X X X
COM M ERCIAL/BUSINESS USES (continued)
Automobile service
station(6)
X X X X X X X
Automobile, recreational
vehicle or boat sales
X X X X X X X
Boat/marine supply
stores
X X X X X X X
Brew pubs X X X X X X X
Clinic, medical X X X X X X X
Conference center ACUP X X X X X X
Customart and craft
stores
X X X X
1
X X X
Day -care center (14)
ACUP X X C C C X
Day -care center, family
14)
X X X ACUP P P X
Chapter 17.381 ALLOWEDUSES
Page 37 of65
Drinking establishments
X X X X X X X
Engineering and
constructionoffices
X X X X X X X
Espressostands (58) X X X X X X X
Equipment rentals X X X X X X X
Farmand garden
equipment and sales
X X X X X X X
Financial, banking,
mortgage and title
institutions
X X X X X X X
General office and.
management services
less than 4,000 s.f.
X X X
X X X X
General office and
management services
4,000 to 9,999 s.f.
X X X X. X X X
General office and
management services
10,000 s.f. or greater
X X X X X X X
General retail
merchandise stores
less than4,000 s.f.
X X X X X X X
General retail
merchandise stores
4,000 to 9,999 s.f.
X X X X X X X
General retail
merchandise stores
10, 000 to24,999 s.f.
X X X X X X X
General retail
merchandise stores
25,000 s.f. or greater
X X X X X X X
Kennels or Pet day-
cares
X X X
C
12)
C
12)
C
12)
X
Kennels, hobby
X X X P P P P
Laundromats and
laundry services
X X X X X X X
Chapter 17. 381 ALLOWEDUSES Page 38 of65
Lumber and bulky
building material sales
X X X X X X X
M obile home sales X X X X X X X
COM M ERCIAL/BUSINESS USES (continued)
Nursery, retail
X X X C C C X
Nursery, wholesale
X X X P P P P
Off - street private parking
facilities
X X X X X X X
Personal services skin
care, massage,
manicures,
hairdresser /barber
X X X X X X X
Pet
shop
retail and
grooming
X X X X X X X
Research laboratory
X X X X X X X
Restaurants X X X X X X X
Restaurants, high-
turnover
X X X X X X X
Recreational vehicle
rentals
X X X X X X X
Temporary offices and
model homes (27)
X X X X ACUP ACUP X
Tourismfacilities,
including outfitter and
guide facilities
X X X X X X X
Tourismfacilities,
including seaplane and
tour -boat terminals
X X X X X X X
Transportationterminals X X X X X X X
Veterinary clinics /Animal
hospitals
X X X C
C
8)
C
8)
X
RECREATIONAL/CULTURAL USES
Accessory use or
structure (1) ( 17) (51)
P P P P P P P
0
Chapter 17. 381 ALLOWEDUSES
Page 39 of65
Amusement centers ACUP X X X X X X
Carnival or Circus ACUP X X X X X X
Club, civicor social ACUP X
12)
X
12) 12)
X
Golf courses ACUP X X
C
12)
G
12)
C
12)
X
M arinas ACUP X X X X X X
M ovie /Performance
theaters, indoor
X X X X X X X
M ovie /Performance
theaters, outdoor
C X X X X X X
M useum, galleries,
aquarium, historic or
cultural exhibits
ACUP X
X X X X X
Parks and open space P P P P P P P
Race track, major
2)
X X X X X X
Race track, minor
C
12)
C
12)
C
12)
X X
X
C
12)
RECREATIONAL/CULTURAL USES (continued)
Recreational facilities,
private
ACUP X X
C
12)
C
12)
C
12)
C
Recreational facilities,
public
ACUP X X ACUP ACUP ACUP C
Recreational vehicle
camping parks
ACUP X X X
C
46)
C
46)
C
46)
Zoo X X X X X X X
INSTITUTIONAL USES
Accessory use or .
structure (1) ( 17) ( 51)
P P P P P P P
Govemment/Public
structures
P X X P ACUP ACUP X
Hospital X X X X X X X
C C C
Chapter 17.381 ALLOWEDUSES Page 40 of65
Places ofworship
X X X 12) 12) 12) X
Private or public schools
20)
X X C C C X
Publicfacilities,
transportation and
parkingfacilities, electric
power and natural gas
utility facilities,
substations, ferry
terminals, and commuter
park - and-ride lots (16)
P
C
5)
C C C C C
INDUSTRIALUSES
Accessory use or
structure (1) ( 17) (51)
X P P P P P P
Air pilot training schools
X X X X X X X
Assembly and
packaging operations
X X X X X X X
Boat yard X X X X X X X
Cemeteries, mortuaries,
and crematoriums (10)
X X X C C C C
Cold storage facilities X X X X X X X
Contractor' s storage
yard(21)
X X ACUP X
C
12)
C
12)
X
Food production,
brewery or distillery
X X X X X X
Fuel distributors X X X X X X X
Helicopter pads (13) X X X X X X X
M anufacturing and
fabrication, light
X X X X X X X
M anufacturing and
fabrication, medium
X X X X X X X
M anufacturing and
fabrication, heavy
X X X X X X X
M anufacturing and
fabrication, hazardous
X X X X X X X
Chapter 17. 381 ALLOWEDUSES Page 41 of65
Recycling
centers
1
X
1
X, X
I
X
l
X
1
X
1
X
INDUSTRIAL USES (continued)
Rock crushing
X
39) 39)
X X X
39) 39
Slaughterhouse or
animal processing
X X X X X X X
Storage, hazardous
materials
X X X X X X X
Storage, indoor X X X X X X. X
Storage, outdoor X X X X X X X
Storage, self - service X X X X X X X
Storage, vehicle and
equipment( 1)
X X X
X
18)
X
18)
X
18)
X
Topsoil production,
stumpgrinding
X X C X
C
22)
C
22)
X
Transshipment facilities,
including docks,
wharves, marine rails,
cranes, and barge
facilities
X X X X X X X
Uses necessary for
airport operation such as
runways, hangars, fuel
storage facilities, control
towers, etc. (13)
X X X X X X X
Warehousing and
distribution
X X X X X X X
Wrecking yards andjunk
yards (1)
X X X X X X X
RESOURCELAND USES
Accessory use or
structure (1) ( 17) ( 51)
P P P P P P P
Aggregate extractions
sites
X
P
4)
P X C C C
Agricultural uses (15) P X
P P
P P P
Chapter 17.381 ALLOWEDUSES
Page42 of65
Ord. 425 ( 2009) 3 ( Att. B) ( part), 2009; Ord. 420 ( 2008) 8( part), 2008; Ord.
419 ( 2008) 5 9, 2008; Ord. 415 ( 2008) 142 146, 2008: Ord. 405 ( 2007)
5 ( part), 2007; Ord. 402 ( 2007) 2 ( part), 2007; Ord. 384( 2007) 9, 10,
2007; Ord. 380 ( 2007) 3 ( part), 2007; Ord. 367( 2006) 105 ( part), 2006)
17. 381. 050 Footnotes for zoning use table.
A. Where noted on the preceding use tables, the following additional
restrictions apply:
1. Where applicable subject to Section 17. 381. 060, Provisions applying to
special uses.
2.
M inimum setbacks shall be. twenty feet from any abutting right - of - way
or property line; provided, however, advertising for sale. of products shall be
limited to two on- premises signs each not exceeding six square feet.
3. When- located within urban growth ares( except UR), duplexes shall
require five thousand square feet of minimum lot area. Duplexes located in
the UR zone or outside of urban growth areas shall require double the
minimum lot area required for the zone.
4. No greater than two acres for the purpose of construction and
maintenance of a timber management road system, provided the total
parcel is at least twenty acres.
5. Provided public facilities do not inhibit forest practices.
6. Where permitted, automobile service stations shall comply with the
following provisions:
a. Sale of merchandise shall be conducted within a building, except
for items used for the maintenance and servicing of automotive
vehicles;
b. No automotive repairs other than incidental minor repairs, battery,
or tire changing shall be allowed;
c. The station shall not directly abut a residential zone; and
7) 7) 7)
Aquaculture practices P X X C C C C.
Forestry
P P P P P P P
Shellfish/fish hatcheries
and processing facilities
X X X X X X X
Ord. 425 ( 2009) 3 ( Att. B) ( part), 2009; Ord. 420 ( 2008) 8( part), 2008; Ord.
419 ( 2008) 5 9, 2008; Ord. 415 ( 2008) 142 146, 2008: Ord. 405 ( 2007)
5 ( part), 2007; Ord. 402 ( 2007) 2 ( part), 2007; Ord. 384( 2007) 9, 10,
2007; Ord. 380 ( 2007) 3 ( part), 2007; Ord. 367( 2006) 105 ( part), 2006)
17. 381. 050 Footnotes for zoning use table.
A. Where noted on the preceding use tables, the following additional
restrictions apply:
1. Where applicable subject to Section 17. 381. 060, Provisions applying to
special uses.
2.
M inimum setbacks shall be. twenty feet from any abutting right - of - way
or property line; provided, however, advertising for sale. of products shall be
limited to two on- premises signs each not exceeding six square feet.
3. When- located within urban growth ares( except UR), duplexes shall
require five thousand square feet of minimum lot area. Duplexes located in
the UR zone or outside of urban growth areas shall require double the
minimum lot area required for the zone.
4. No greater than two acres for the purpose of construction and
maintenance of a timber management road system, provided the total
parcel is at least twenty acres.
5. Provided public facilities do not inhibit forest practices.
6. Where permitted, automobile service stations shall comply with the
following provisions:
a. Sale of merchandise shall be conducted within a building, except
for items used for the maintenance and servicing of automotive
vehicles;
b. No automotive repairs other than incidental minor repairs, battery,
or tire changing shall be allowed;
c. The station shall not
directly
abut a residential zone; and
Chapter 17. 381 ALLOWEDUSES
Page 43 of65
d.
All lighting shall be ofsuch illumination, direction, and color as not
tocreate a nuisance on adjoining property or a traffichazard.
7. In rural wooded(RW), rural protection,(RP), or rural residential (RR)
zones:
a.
Animal feed yards and animal sales yards shall be located not less
thantwohundred feet fromany property line; shall provide automobile
and truck ingress and egress; and shall also provide parking and
loading spaces sodesigned as to minimize traffic hazards and
congestion. Applicants shall showthat odor, dust, noise, and drainage
shall not constitute a nuisance, hazard, or health problemto adjoining
property or uses.
b.
All stables and paddocks shall be located not closerthanfifty feet
toany property line. Odor, dust, noise, flies, or drainage shall not be
permitted tocreate or become a nuisance to surrounding property.
8.
A veterinary clinic or animal hospital shall not be locatedwithin fifty feet
of a lot line in the rural protection(RP) or rural residential (RR) zones. In
addition, the applicant may be required to provide additional measures to
prevent or mitigate offensive noise, odor, light and other impacts.
9.
Veterinary clinics and animal hospitals are allowed, provided a major
part ofthe site fronts on a street and the director finds that the proposed
use will not interfere with reasonable use of residences by reason oftoo
close proximity to such residential uses, or by reason of a proposed
exterior toodifferent fromother structures and character of the
neighborhood. All activities shall be conducted inside an enclosed building.
10.
A cemetery, crematorium, mausoleum, or columbariumshall have its
principal access on a county roadway with ingress and egress so designed
as tominimize traffic congestion, and shall provide required off - street
parking spaces. No mortuary or crematoriumin conjunctionwith a
cemetery is permittedwithintwo hundred feet of a lot in a residential zone.
11.
A circus, carnival, animal display, or amusement ride may be allowed
through administrative review in all industrial zones and any commercial
zones, except neighborhood commercial (NC), for a termnot to exceed
ninety days, with a written approval of the director. The director may
condition such approval as appropriate to the site. The director' s decision
may be appealed tothe hearing examiner.
12.
All buildings and activities shall be set back a minimumof fifty feet in
FRL, M R, RW, RP, RR or Parks zones and
thirty -
five feet in all other zones
Chapter 17.381 ALLOWEDUSES Page 44 of65
froma side or rear lot line. AD such uses shall access directly to.a county
right -of -way determined to be adequate by the county engineer, and be
able toprovide accesswithout causing traffic congestion on local
residential streets. Any such use shall not be materially detrimental toany
adjacent (existing or future) residential development due to excessive traffic
generation, noise, Tight or other circumstances. The director may increase
setback, buffer and landscaping standards or impose other conditions to
address potential impacts.
13.
Public use airports and heliports are allowed only withinthe airport
A) zone established by thistitle. Heliports for the purpose of medical
emergency facilities may be permitted in certain zones subject toa
conditional use permit. All private landing strips, runways, and heliports
shall be so designed and orientedthat the incidents of aircraft passing
directly over dwellings during their landing or taking off patterns is
minimized. They shall be located sothat trafficshall not constitute a
nuisance to neighboring uses. The proponents shall showthat adequate
controls or measures will be taken to prevent offensive noise, vibrations,
dust, or bright lights.
14.
In those zones that prohibit residential uses, family day -care centers
are only allowed in existing residential structures. Day -care centers shall
have a minimumsite size often thousand square feet and shall provide
and thereafter maintain outdoor play areas with a minimumarea of
seventy -five square feet per child of total capacity. A sight - obscuring fence
of at least four feet in height shall be provided, separating. the play area
fromab.utting Tots. Adequate off - street parking and loading space shall be
provided.
15.
The number of animals on a particular property shall not exceed one
large livestock, three small livestock, five ratites, six small animals, or
twelve poultry:
a.
Per forty thousand square feet of lot area for parcels one acre or
smaller or for parcels five acres or smaller located within twohundred
feet ofa lake or year round stream; provided, that when nodwelling
unit or occupied structure exists within three hundred feet of the lot on
which the animals are maintainedthe above specifications may be
exceeded by a factor of two;
b.
Per twenty thousand square feet of area for parcels greater than
one acre, but Tess than or equal to five acres, not located withintwo
hundred feet of a lake or year round stream; provided, that when no
dwelling
unit or occupied structure existswithinthree hundred feet of
Chapter 17.381 ALLOWEDUSES
Page 45 of65
the lot onwhich the animals are maintainedthe above specifications
may be exceeded by a factor of two;
c.
Nofeeding area or structure or building used to house, confine or
feed livestock, small animals, ratites, or poultry shall be located closer
than one hundred feet to any residence on adjacent property located
within a rural wooded(RW), rural protection(RP), or rural residential
RR) zone, or withintwo hundred feet of any residence on adjacent
property within any other zone; provided, a pasture (greater than
twenty thousand square feet) shall not be considered a feed area.
16.
The erection, construction, alteration, or maintenance of overhead or
underground utilities by a public utility, municipality, governmental agency,
or other approved party shall be permitted in any zone; provided, that any
permanent above - ground structures not located withina right -of -way or
easement shall be subject tothe review of the director. Utility transmission
anddistribution lines and poles may exceedthe height limits otherwise
provided for in this title. Water towers which exceed thirty-five feet in height,
solid waste collection, transfer and/or handling sites in any zone shall be
subject toa conditional use permit. These provisions do not apply to
wireless communication facilities, which are specifically addressed in
Chapter 17.470.
17.
For waterfront properties, accessory structures such as docks, piers,
and boathouses may be permitted inthe .rear yards, shorelands or
tidelands subject tothe following limitations:
a.
All requirements of the Kitsap County Shoreline M anagement
M aster Programmust be met;
b.
The building height of any boathouse shall not be greater than
fourteenfeet above the ordinary high water line;
c.
Covered structures must abut or be upland of the ordinary high
water line; and
d.
No covered structure shall have a width greater thantwenty -five
feet or twenty -five percent of the lot width, whichever is most
restrictive.
18.
One piece of heavy equipment may be stored in any single - family
zone; provided, that it is either enclosed within a permitted structure, or
screened tothe satisfaction of the director.
19. All development withinthe Silverdale Design District boundaries must
Chapter 17.381 ALLOWEDUSES
Page46 of65
be consistent with the Silverdale Design Standards:
20. Site plans for public schools shall include an area identified and set
aside for the future placement of a minimumoffour portable classroom
units. The area set aside may not be countedtowards meeting required
landscapingor parking requirements.
21. Outdoor contractor' s storage yards accessory to a primary residence
shall belimited to not more than ten heavy equipment vehicles or heavy
construction equipment. The.use shall be contained outside of required
setbacks within a contained yard or storage building. The storage yard
and/or building shall be screened fromadjacent properties with a screening
buffer a minimumoftwenty -five feet in width and capable of providing
functional screening ofthe use. M inimumlot size shall be one hundred
thousand square feet.
22.
Stumpgrinding, soil - combining and composting in rural protection
and rural residential zones must meet the following requirements:
a.
The subject property(ies) must be one hundred thousand square
feet or greater in size;
b. The use must take direct access froma county - maintained right -of
way;
c.
A fifty -foot natural vegetation buffer must be maintained around
the - perimeter of the property(ies) to provide adequate screening of the
use fromneighboring properties;
d.
The subject property(ies) must be adjacent to an industrial zone or
a complementary public facility such as a sewage treatment plant or
solid waste facility;
e. The proposed use must mitigate noise, odor, dust and light
impacts fromthe project; and
f. The use must meet all other requirements of this title.
23.
Home businesses located in the forest resource lands (FRL) must be
associated with timber production and/or harvest.
24. M obile homes are prohibited, except in approved mobile home parks.
25.
All uses must comply with the Town Development Objectives of
Section 17.321B.025.
Chapter 17.381 ALLOWEDUSES
Page 47 of65
26.
Within the M VC zone, a new single- family dwelling may be
constructed only when replacing an existing single - family dwelling. All
replacement single- family dwellings and accessory structures within the
M VC zone must meet the height regulations, lot requirements, and
impervious surface limits ofthe M VR zone.
27.
Subject tothe temporary permit provisions of Chapter 17.455.
28.
Allowed only within a commercial center limited in size and scale
e.
g..,
an intersection or corner. development).
29.
The Bethel Road Corridor Development Plan sets forth policies and
regulations for development within the Highway Tourist Commercial Zone
located along the Bethel Corridor in South KitsapfromSE Ives M ill Road to
the Port Orchard city limits. Development withinthe Bethel Road Corridor
Highway Tourist Commercial Zone shall be conducted in a manner
consistent with the policies and regulations of the Land Use Element ofthe
Bethel Road Corridor Development Plan.
30.
The Design Standards for the Community of Kingston set forth
policies and regulations for properties within the downtown area of
Kingston. All development within this area must be consistent with these
standards. A copy of the Design Standards for the Community of Kingston
may be referred toonthe KitsapCounty web page or at the department of
community development front counter.
31.
Uses permitted only if consistent with an approved master plan
pursuant to Chapter 17.415. Where a master plan is optional and the
applicant chooses not todevelop one, all uses shown as permitted require
an administrative conditional use permit.
32.
For properties with an approved master plan, except as described in
Section 17.370.025, all uses requiring a conditional use permit will be
considered permitted uses.
33. M ust be located and designed to serve adjacent area.
34. Bed and breakfast houses with one tofour rooms require an
administrative conditional use permit; bed and breakfast houses with five or
more rooms require a hearing examiner conditional use permit. Bed and
breakfast houses serving meals topatrons other than overnight guests
require a hearing examiner conditional use permit.
35.
The use shall be accessory and shall not occupy more than twenty -
five percent of the project area.
Chapter 17. 381 ALLOWEDUSES
Page 48 of65
36. Requires a conditional use permit when abutting SVR or SVLR zone.
37.
Permitted only withina mixed use development or office complex.
38. Customer service- oriented uses over five thousand square feet' are
prohibited.
39. For the purpose of construction and maintenance of a timber
management road system.
40. Self storage facilities must be accessory tothe predominant
residential use ofthe property, sized consistently for the number of
lots/units being served and may serve only the residents of the single -
family plat or multi- family project.
41.
Adult family homes serving one to six residents (excluding
proprietors) are permitted uses. Adult family homes serving more than six
applicable residents (excluding proprietors) require an administrative
conditional use permit (ACUP).
42.
All business, service repair, processing, storage, or merchandise
display on property abutting or across the street froma lot in any residential
zone, shall be conducted wholly within an enclosed building unless
screened fromthe residential zone by a sight- obscuring fence or wall.
43. Where a family member is in need of special, frequent and routine
care and assistance by reason of advanced age or HI health, a
manufactured home or mobile home may be placed upon the same lot as a
single - family dwelling for occupancy by the individual requiring or providing
such special care subject tothe following limitations:
a. Not more than twoindividuals shall be the recipients of special
care;
b. No rent, fee, payment or charge in lieuthereof may be made for
use of the single- family dwelling or manufactured/mobile home as
between the recipients or providers of special care;
c. The manufactured/mobile home must meet the setback
requirements ofthe zone in which it is situated;
d. A permit must be obtainedfromthe director authorizing such
special care manufactured/mobile home. Such permit shall remain in
effect for oneyear and may, upon.application, be extendedfor one -
year periods, provided there has been compliance with the
requirements ofthis section;
Chapter 17.381 ALLOWEDUSES
Page 49 of65
e.
The manufactured/mobile home must be removed whenthe need
for special care ceases; and
f.
Placement of the manufactured/mobile home is subject to
applicable health district standards for water service and sewage
disposal.
44.
Certain development standards may be modified for mixeduse
developments, as set forth in Section 17.382.035 and Chapter 17.400.
45.
Newor expanded commercial developments that will result in less
thanfive thousand gross square feet of total commercial use. within a
development site or residential developments of fewer than four dwelling
units are permitted outright outside ofthe Silverdale UGA.
46.
Allowed only as an accessory use to a park or recreational facility
greater than twenty acres in size.
47.
As a hearing examiner conditional use, UM and UH zones adjacent to
a commercial zone may allow coordinated projects that include commercial
uses withintheir boundaries. Such projects must meet the following
conditions:
a.
The project must include a combination of UM and/or UH and
commercially zoned land;
b.
The overall project must meet the density required for the net
acreage of the UM or UH zoned land included in the project;
c.
All setbacks fromother residentially zoned land must be the
maximumrequired by the zones included in the project;
d.
Loading areas, dumpsters and other facilities must be located
away fromadjacent residential zones; and
e.
The residential and commercial components of the project must
be coordinated to maximize pedestrian connectivity and access to
publictransit.
48.
Withinurban growth areas, all new residential subdivisions, single -
family or multifamily developments are requiredtoprovide an urban level of
sanitary sewer service for all proposed dwelling units.
49.
M ixed use development is prohibited outside of urban growth areas.
50. The 2007 M anchester
Community
Plan, Appendix A M anchester
Chapter 17.381 ALLOWEDUSES
Page 50 of65
Design Standards sets forth policies and regulations for properties within
the M anchester Village Commercial (M VC) district. All development within
the M VC district must be consistent with thesestandards.
51.
Storage ofshipping containers is prohibited unless allowed as part of
a land use permit and/or approval. Placement ofstorage containers
allowed only with an approved temporary permit subject tothe provisions of
Section 17.455.090( 1).
52.
Aggregate production and processing only. Allowed only if directly
connected toan approved surface mining permit approved by the
Washington State Department of Natural Resources.(DNR).
53. Commercial or industrial uses otherwise prohibited in the zone may
be allowed as a component ofa home business subject tothe
requirements of Section 17. 381. 060(B).
54. The grossfloor area shall not exceed four thousand square feet.
55. Auction house and all itemstobe auctioned shall be fully enclosed
within a structure.
56. There shall. be no more than six rental vehicles kept on site.
57. When a component of development located within a commercial zone
involves the conversion of previously undeveloped land which abuts a
residential zone, it shall be treated as a Type II Administrative Decision.
58. In additiontothe other standards set forth in KitsapCounty Code,
espressostands are subject tothe following conditions:
a.
Drive aisles /stacking lanes shall be designed to accommodate a
minimumofthree vehicles per service window /door. Each stacking
lane shall be sized measuring eight and one -half feet in width and
twenty feet in length,
with direct accesstothe service window. The drive aisles /stacking
lanes shall be designed to prevent any vehicles frominterfering with
public or private roadways, pedestrian circulation, traffic circulation,
parking areas or other required development amenities.
b. Subject to provisions set forth in Chapter 17.435, drive aisles and
parking areas must also be paved in urban growth areas and include,
at minimum, hard compacted surfaces in rural areas. Such surfaces
must be addressed with required drainage facilities. A joint parking
agreement shall be required if
parking
cannot be accommodated on
Chapter 17.381 ALLOWEDUSES
Page 51 of65
site.
c.
All structures must be permanently secured tothe ground.
d.
Restroomfacilities must be available for employees. Portable or
temporary restroomfacilities shall not be used tomeet this
requirement.
59.
Use is permitted in the South Kitsapindustrial Area only.
60.
All development in Illahee shall be consistent with the Illahee
Community Plan.
61.
Use prohibited in the Waaga Way Town Center area (see the
Silverdale Design Standards).
62.
General retail merchandise stores greater than one hundred twenty -
five thousand square feet in size are prohibited in the Waaga Way Town
Center area (see the Silverdale Design Standards). Additional square
footage may be allowed for projects greater than twenty -five acres in size.
63.
Restaurants, high - turnover that provide drive -thru service must be
compatible with the pedestrianfocus of the Waaga Way Town Center (see
the Silverdale DesignStandards).
Such businesses shall minimize potential
conflictswith pedestrian and bicycle traffic and gathering areas by
subordinating the drive -thru service tothe overall development design.
Ord. 425 (2009) 3 (Att. B) ( part), 2009: Ord. 420 (2008) 8( part), 2008; Ord.
419 (2008) 10, 2008: Ord. 415 (2008) 147: Ord. 405 (2007) 5 ( part), 2007:
Ord. 384.(2007) 11, 2007: Ord. 381 ( 2007) 3, 2007: Ord. 367(2006) 105
part), 2006)
17.381. 060 Provisions applying tospecial uses.
A.
In additiontoother standards and requirements imposed by this title, all
uses included in this section shall comply with the provisions stated herein.
Should a conflict arise between the requirements of this section and other
requirements of this title, the most restrictive shall apply.
B. Uses with additional restrictions:
1.
Home Business. Home businesses may be allowedfor commercial or
industrial uses within residential zones subject tothe following conditions:
a.
Incidental home business, as definedbelow, shall be permitted in
all residential zones and have no permit required.
Chapter 17.381 ALLOWEDUSES Page 52 of65
1)
Business uses shall be incidental and secondary tothe
dominant residential use;
2)
Th.e residential character ofthe building shall be maintained
and the business shall be conducted in such a manner as not to
give an outside appearance of a business;
3)
The business shall be conducted entirely withinthe
residence;
4)
The residence shall be occupied by the owner of the
business;
5) The business shall not infringe upon the right of the
neighboring residents to enjoy the peaceful occupancy of their
homes;
6) No clients or customers shall visit or meet for an appointment
at the residence;
7) No employees or independent contractors are allowed to
work in the residence other than family members whoreside in the
residential dwelling;
8)
No activities that create noise, increase risk of fire, or in any
way threatenthe safety and tranquility of neighboring residents
are permitted;
9)
No more thantwo pick -ups and/or deliveries per day are
allowed, not including normal U.S. mail;
10)
The business shall not occupy more than twenty -five
percent ofthe grossfloor area of the residence; and
11) Nosigns toadvertise the business /occupation shall be
allowed on the premises (except attached to mailbox not to
exceed one square foot).
b. M inor home business, as defined below, shall be permitted in all
residential zones subject toapproval by the director. Said approval is
not transferable toany individual, future property owner or location.
1)
Business uses shall be incidental and secondary tothe
dominant residential use;
2) The residential character ofthe
building
shall be maintained
Chapter 17. 381 ALLOWEDUSES
Page 53 of65
and the business shall be conducted in such a manner as not to
give an outside appearance of a business;
3)
The residence shall be occupied by the owner ofthe
business;
4)
The business shall occupy no more thanthirty percent ofthe
gross floor area of the residence;
5)
The business shall. not infringe uponthe right ofthe
neighboring residents to enjoy the peaceful occupancy oftheir
homes;
6)
No more than two employees, including proprietors (or
independent contractors), are allowed;
7)
Nonilluminated signs not exceeding four square feet are
permitted, subject to a sign permit approved by the director;
8)
Nooutside storage shall be allowed; and
9)
In order to assure compatibility with the dominant residential
purpose, the director may require:
i.
Patronage by appointment.
ii.
Additional off - street parking.
iii. Other reasonable conditions.
c. M oderate home business, as defined below, shall be permitted in
RW, RP, RR and URS zones subject to approval by the director. Said
approval is not transferable toany individual, future property owner or
location.
1)
Business uses shall be incidental and secondary tothe
dominant residential use;
2)
The residential character of the building shall be maintained
and the business shall be conducted in such a manner as to
moderate any outsideappearance of a business;
3)
The residence shall be occupied by the owner of the
business;
4) The business shall not infringe upon the right ofthe
Chapter 17.381 ALLOWEDUSES Page 54 of65
neighboring residents to enjoy the peaceful occupancy of their
homes;
5) No more than five employees (or independent contractors)
are allowed;
6)
Nonilluminated signs not exceeding four square feet are
permitted, subject to a sign permit approved by the director; and
7)
In ordertoensure compatibility with the dominant residential
purpose, the director may require:
i.
Patronage by appointment.
ii.
Additional off - street parking.
iii.
Screening ofoutside storage.
iv. A conditional use permit (required for engine or vehicle
repair or servicing).
v. Other reasonable conditions.
2. Pets and ExoticAnimals. Pets, nontraditional pets and exotic animals
are subject tothe following conditions:
a.
Pets which are kept inside of a primary structure as household
pets in aquariums, terrariums, cages or similar containers shall not be
limited in number by this title. Other pets, excluding cats, which are
kept indoors shall be limited tofive;
b.
Pets which are kept outside ofthe primary structure shall be
limited tothree per household on Tots lessthantwenty thousand
square feet in area, only one ofwhich may be a nontraditional pet; five
per household on Tots of twenty thousand tothirty -fivethousand square
feet, only two of which may be nontraditional pets; with an additional
two pets per acre of site area over thirty -five thousand square feet up
to a limit oftwenty;
c.
The keeping or possession of exotic animals is subject to state
and federal laws and, other than in a primary structure as described in
subsection(8)( 3) of this section, shall require approval of the director.
Possession of any dangerous animal or potentially dangerous animal
is prohibited in all zones except as provided in Section7. 14.010(9);
and
Chapter 17. 381 ALLOWEDUSES
Page 55 of65
d.
Nofeeding area or structure used tohouse, confine or feed pets
shall be located closer thanthe minimumyard setbacksfor the zone in
which they are located. Nofeeding area or structure used tohouse,
confine orfeed non- traditional pets or exotic animals shall be located
closer than fifty feet fromany residence onadjacent property.
3.
Accessory Dwelling
Unit (ADU).
In ordertoencourage the provisionof
affordable and independent housing for a variety of households, an
accessory dwelling unit may be located in residential zones, subject tothe
following criteria:
a.
An ADU shall be allowed as a permitted use inthose areas
contained within an urban growth boundary;
b.
An ADU shall be subject to a conditional use permit in those areas
outside an urban growth boundary;
c.
Only one ADU shall be allowed per lot;
d.
Owner ofthe property must reside in either the primary residence
or the ADU;
e.
The ADU shall not exceed fifty percent ofthe square footage of
the habitable area of primary residence or nine hundred square feet,
whichever is smaller;
f.
The ADU shall be located withinone hundredfifty feet of the
primary residence or. shall be the conversion of an existing detached
structure (i. e., garage);
g. The ADU shall be designed tomaintain the appearance of the
primary residence;
h.
All setback requirements for the zone in which the ADU is located
shall apply;
i.
The ADU shall meet the applicable health district standards for
water and sewage disposal;
j. No mobile homes or recreational vehicles shall be allowed as an
ADU;
k.
An ADU shall use the same side street entrance as the primary
residence and shall provide additional off - street parking; and
L AnADU is not permitted on the same lot where an
accessory living
Chapter 17. 381 ALLOWEDUSES Page 56 of65
quarters exists.
m.
Existing, U.npermittted Accessory Dwelling Units.
1)
Applicability. The provisions ofthis subsection shall only
apply to property and property owners whocan establish all of the
following criteria:
i.
The parcel is within the unincorporated area of Kitsap
County;
ii. An
accessory dwelling
unit (ADU), as defined in Section
17. 110.020, or similar dwelling previously defined as an
accessory living quarters (ALQ) or an accessory rental unit
ARU) is located on the parcel;
iii.
The accessory dwelling has not received any prior review
and/or approval by Kitsap County;
iv.
The property owner did not construct or cause to have
the accessory dwelling constructed;
v.
The property owner did not own the property whenthe
accessory dwelling was constructed;
vi.
The property owner exercised due diligence when
purchasing the property with the existing accessory dwelling
todiscover whether or not the accessory dwelling was
approved when purchasing the property. Due diligence is
presumed to have occurred if the property owner can
document the following conditions:
a)
That county tax records or parcel records contain no
inquiry or other notice that the ADU was unpermitted; and
b) That the current owner requested and obtained a title
report with noexceptions, restrictions, eriforcement actions,
permitting or similar issues pertinent tothe ADU; and
c)
That the prior owner' s property and improvement
disclosures at the time of sale did not indicate any permitting,
compliance or similar issues pertinent tothe ADU; and
d)
That any third party involved in the sale or inspection of
the ADU did not disclose any permitting, compliance or other
issues pertinent tothe ADU.
Chapter 17. 381 ALLOWEDUSES
Page 57 of65
vii.
The parcel has a history of property tax assessment and
a history of continuous tax payments onthe principal and the
accessory dwelling.
viii.
Acceptable documentation for subsections (B)( 3)( m)( 1)
W. through (vii) of this section may inchide but are not limited
tocurrent or previous county assessment records, real estate
disclosure forms, listing agreements, records ofsale, title
reports and aerial photography establishing compliancewith
the required conditions.
2)
Application. Personswho' meet the criteria of subsection(B)
3)( m)( 1) ofthis section desiring togain approval of their
accessory dwelling shall make application tothe director ofthe
department of community development onforms provided by the
department, with fees to be paid-at the time of application as
provided in subsection(B)( 3)( m)( 5) ofthis section. Such
application shall be a Type II permit under Chapter 21. 04.
3)
Approval. The director, or his designee, is authorizedto
approve submitted applicationsthat satisfy all ofthe following:
i.
All the requirements of this section;
ii.
All the applicable zoning, health, fire safety and building
construction requirements:
a) The applicable requirements shall be those in effect
whenthe accessory dwelling was constructed. The burden of
proof ofwhen the accessory dwelling was constructed shall
be upon the applicant and may consist of dated aerial
photography, tax assessments, surveys or similar documents.
b) If the applicant cannot prove a date of construction, the
applicable requirements shall be those currently ineffect on
the date of application.
c)
If the applicant can only show a date range for
construction, the applicable requirements shall be the latest
requirements of the range;
iii. Proof of adequate potable water;
iv. Proof of adequate sewage disposal systems for both the
principal and the
accessory dwelling.
Proof shall be shown
by
Chapter 17.381 ALLOWEDUSES Page 58 of65
KitsapCounty health district approval; and
v.
Verification by KitsapCounty inspection staffthat the
accessory dwelling is habitable.
Applications approved subject tothese provisions shall be
considered legal nonconforming uses.
4) Variances.
i.
When reviewing the applicatiorOhe director is authorized
to grant an administrative variance tothe requirements of
subsection( B)(3)( m)( 3)( ii) of this section only when unusual
circumstances relating tothe property cause undue hardship
in the applicationof subsection(B)( 3)(m)( 3)( ii) of this section.
The granting of an administrative variance shall be inthe
publicinterest. An administrative variance shall be granted at
the director' s sole discretion only whenthe applicant has
proven all of the following:
a)
There are practical difficulties in applying the regulations
of subsection(B)( 3)( m)( 3)( ii) ofthis section;
b)
The applicant did not create or participate in creating the
practical difficulties;
c) A variance meets the intent and purpose of this section;
d)
The variance will not be materially detrimental to the
publicwelfare or injurious to property in the vicinity or zone in
which the property is located; and
e) The variance is the minimumnecessary togrant relief to
the applicant.
ii. The director is authorized to require mitigation in
connection with the administrative variance to minimize the
effect of the variance on surrounding properties.
iii.
In reviewing a request for an administrative variance, the
director shall notify and solicit commentsfromsurrounding
property owners ofthe application and the intended variance
and mitigation. The director shall consider such comments
whendetermining whether or not to approve the variance.
The director is further authorized to require mediationto
resolve issues
arising
fromthe notification process and the
Chapter 17. 381 ALLOWED.USES
Page 59 of65
costs of such mediation shall be paid by the applicant.
iv.
Variance requests submitted as part of this subsection
shall be considered as part of the original application and not
subject toadditional procedural or fee requirements.
5)
Fees,. Applicants shall pay a fee established by resolution at
the time of application. Additionally, applicants shall pay
notification costs, reinspectionfees, additional review and other
applicable fees in accordance with Chapter 21. 06. Applicants may
initiate a staff consultationin
considering or preparing an
application under these provisions. The staff consultation fee
established in Chapter 21. 06 shall not, however, be credited
towards any subsequent application submitted under these
provisions.
6) -
Land Use Binder. Following approval of the accessory
dwelling and any administrative variance, the applicant shall
record a land use permit binder with the county auditor using
forms provided by KitsapCounty department ofcommunity
development.
7)
Expiration. Qualifying property owners shall have one year
fromthe time that the noncompliant ADU is discovered tosubmit
an application for approval ofthe ADU.
4.
Accessory Living Quarters. In order toencourage the provision of
affordable housing, accessory living quarters may be located in residential
zones, subject tothe following criteria:
a.
Accessory living quarters shall be located within an owner -
occupied primary residence;
b.
Accessory living quarters are limited in size to nogreater thanfifty
percent of the habitable area of the primary residence;
c.
The accessory living quarters are subject toapplicable health
district standards for water and sewage disposal;
d.
Only one accessory living quarters shall be allowed per lot;
e.
Accessory living quarters are to provide additional off - street
parking with no additional street side entrance; and
f.
Accessory living quarters are not allowed where an accessory
dwelling
unit exists.
Chapter 17. 381 ALLOWEDUSES Page60 of65
g. Existing Unpermitted Accessory Living Quarters. Existing
unpermitted accessory living quarters may be approved under the
provisions of subsection(B)( 3)( m) of this section.
5. Adult Entertainment.
a.
The following uses are designated as adult entertainment uses:
1) Adult bookstore;
2) Adult mini - motion picture theater;
3) . Adult motion picture theater;
4)
Adult novelty store; and
5) Cabaret.
b. Restrictions on Adult Entertainment Uses. In additional to
complying with the other sections ofthe Zoning Ordinance, adult
entertainment uses shall not be permitted:
1)
Within one thousand feet of any other existing adult
entertainment use; and/or
2)
Within five hundred feet of any noncommercial zone, or any
ofthe following residentially related uses:
i. Churches, monasteries, chapels, synagogues, convents,
rectories, or church- operated camps;
ii.
Schools, uptoand including the twelfth grade, and their
adjunct play areas;
iii.
Public playgrounds, publicswimming pools, public parks
and public libraries;
iv.
Licensed day care centers for more than twelve children;
v.
Existing residential use within a commercial zone.
3)
For the purposes of this section, spacing distances shall be
measured as follows:
i.
Fromall property lines of any adult entertainment use;
ii. Fromthe outward
boundary
line ofall residential
zoning
Chapter 17. 3 81 ALLOWEDUSES
Page 61 of65
districts;
ili.
Fromall property fines of any residentially related use.
c.
Signage for Adult Entertainment Uses.
1)
In additiontoother provisions relating to signage in the
Zoning Ordinance, it shall be unlawful for the owner or operator of
any adult entertainment use establishment or any other person to
erect, construct, or maintain any sign for the adult entertainment
use establishment other than one primary sign and one secondary
sign, as provided herein.
2)
Primary signs shall have no more than twodisplay surfaces.
Each such display surface shall:
i.
Be a flat plane, rectangular in shape;
ii.
Not exceed seventy -five square feet in area; and
ili.
Not exceed ten feet in height or ten feet in length.
3)
Primary and secondary signs shall contain no photographs,
silhouettes, drawings or pictorial representations of any manner,
and may contain only:
i.
The name of the regulated establishment; and/or
ii.
One or more of the following phrases:
a) " Adult bookstore,"
b) "
Adult movie theater,"
c) " Adult cabaret,"
d) " Adult novelties,"
e) " Adult entertainment."
4)
Primary signs for adult movie theaters may containthe
additional phrase, "
M ovie Titles Posted on Premises."
i.
Each letter forming a word on a primary or secondary sign
shall be of a solid color, and each such letter shall be the
same print -type, size and color. The background behind such
lettering
on the
display
surface of a
primary
sign shall be of a
Chapter 17. 381 ALLOWEDUSES Page 62 of65
uniformand solid color.
ii.
Secondary signs shall have only one display surface.
Such display surface shall:
a) Be a flat plane, rectangular in shape;
b)
Not exceed twenty square feet in area;
c) Not exceed five feet in heightandfour feet in width; and
d)
Be affixed or attached to any wall or door of the
establishment.
6. Storage of Junk M otor Vehicles.
a.
Storage ofjunk motor vehicles on any property outside of a legally
constructed building (minimumof three sides and a roof) is prohibited,
except wherethe storage of upto six junk motor vehicles meets one of
the following two conditions:
1)
Any junk motor vehicle(s) stored outdoors must be
completely screened by a sight- obscuring fence or natural
vegetation tothe satisfaction of the director (a covering such as a
tarpover the vehicle(s) will not constitute an acceptable visual
barrier). For the purposes ofthis section, "screened" means not
visiblefromany portion or elevation of any neighboring or
adjacent publicor private property, easement or right-of-way; or
2)
Any junk motor vehicle(s) stored outdoors must be stored
more than twohundred fifty feet away fromall property lines.
b.
Environmental M itigation Agreement. The owner of any such junk
motor vehicle(s) must successfully enter intoan environmental
mitigation agreement with.the department of community development
the "department ")
regarding the property where such vehicle(s) will be
located or stored.
1)
An environmental mitigation agreement between a property
owner and the department is required before the outdoor storage
of up tosix screened junk motor vehicles will be approved. A
property owner may enter intosuch agreement with the
department for a one -time fee of $10.00 per vehicle, the proceeds
of which shall be used toassist with clean-upcosts associated
with the administrationof Chapter 9. 56.
Chapter 17.381 ALLOWEDUSES
Page 63 of65
2)
In order to mitigate any potential environmental impact from
the storage of thesejunk motor vehicles, the property owner must
agree to institute one of the following two preventative measures:
i.
Each junk motor vehicle must be drained ofall oil and other
fluids including, but not limited to, engine crankcase oil,
transmission fluid, brake fluid and radiator coolant or antifreeze
prior to placingthe vehicle on site; or
ii.
Drippans or pads must be placed and maintained undemeath
the radiator, engine block, transmission and differentials of each
junk motor vehicle to collect residual fluids.
iii.
Either preventative measure shall require that the owner of
such vehicle(s) clean up and properly dispose of any visible
contamination resulting fromthe storage ofjunk motor vehicles.
The agreement will require the property owner toselect one ofthe
two preventative measures and toallow for an initial inspection of
the property by the department toassure that the preventative
measure has been implemented tothe satisfaction of the
department. By entering intothe agreement, the property owner
further agrees toallow the department entry ontothe property on
an annual basis for reinspection to assure compliance with the
approved agreement. If a property is found to be in compliance
with the terms of the agreement for twoconsecutive inspections,
the department may waive the annual inspection requirement. A
property owner found to be in violationofthe agreement may be
issued a civil infraction pursuant tothis title and could later be
deemed a. nuisance in accordance with Chapter 9.56.
7.
M odel Homes. Notwithstanding any other provision ofthis code, .model
homes may be constructed within a subdivision prior tofinal plat approval
by the board. The purpose ofthe model homes shall be todemonstrate a
variety of housing designs together with associatedon-site improvements,
e.
g., landscaping, improved driveway, patios. M odel homes shall be subject
tothe following requirements:
a.
The subdivision shall have received preliminary plat approval;
b.
One model .home may be occupied as a temporary real estate
office;
c.
A model home may not be occupied as a dwelling unit or sold until
the approvedfinal plat is recorded;
Chapter 17. 381 ALLOWEDUSES Page 64 of65
d.
The number of model home permits that may be issued for any
approved preliminary plat or division thereof shall not exceed six;
e. If the Tots tobe used for model home purposes are in a block of
twoor more contiguous lots, temporary uses may be incorporated onto
one or more lots, including temporary offices, parking, parks and
playgrounds, subject tothe approval ofthe director, and subject to
obtaining a temporary use permit, which shall authorize the temporary
uses for a period of one year. The director may extendthe temporary
use permit for up totwoadditional periods ofsix months each;
f. Lots used for model homes must be clear of restrictions or
easements that may be subject to line changes before recording;
g.
Stormwater management facilities must be in place and/or
approved for recording. Temporary erosion control must be completed
prior to occupancy ofa model home;
h. Roads must be constructed to final alignment and grade such that
the building inspector can determine if connecting driveways meet
county standards prior to occupancy of a model home;
i.
Permanent or temporary fire flow for the final plat must be
approved by the fire marshal, constructed and operational prior to
occupancy of a model home; and
j. Final plat restoration bonds must be posted prior tooccupancy ofa
model home.
8.
Guest Houses. Guest house may be located in those zones specified
in Section 17. 381. 040 subject tothe following conditions:
a. Guest houses shall not exceed nine hundred square feet.
Dimensions are determined by exterior measurements;
b.
Guest houses shall not include any kitchen plumbing,
appliances or provisions for cooking;
c.
Guest houses shall not include more than one bathroom(may
be full bathroom);
d. Guest houses shall not include more than two habitable
rooms and a bathroom;
e.
Guest houses shall not be rentedseparately fromthe primary
residence;
Chapter 17. 381 ALLOWEDUSES
Page 65 of65
f.
Only one guest house is allowed per parcel;
g.
No guest house is allowed on a parcel with an existing
accessory dwelling unit or accessory living quarters;
h.
Newly constructed guest houses must meet the required
setbacks for a single- family dwelling consistent with their zone.
Legally established, existing structures built before M ay 7, 1998,
may be remodeled intoguest houses at their existing setback;
i.
Guest houses must be within one hundred fifty feet of the
primary residence;
j. Guest houses must use the same street entrance as the
primary structure;
k.
Guest houses must meet all applicable health district
standards for water provision and sewage disposal; and
1.
The property owner must record a notice totitle outlining these
conditions. This notice must be approved by the department and
may not be extinguished without the county' s written permission.
Ord. 459 -2010 2, 2010: Ord. 419 (2008) 11, 2008: Ord. 415 (2008) 148,
2008: Ord. 381 ( 2007) 3, 2007: Ord. 367(2006) 105 (part), 2006)
This page ofthe Kitsap County Code is current through
Ordinance 461 ( 2010), passed September 13, 2010.
Disclaimer: The Clerk of the Board' s office has the official
version of the Kitsap County Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County
Website:
http: / /
www.kitsapgov.com/
County
Telephone: ( 360) 337-4870
Code
Publishing Company
Chapter 17.420 ADM NISTRATIVECONDITIONALUSEPERM IT Page 1 of4
Chapter 17.420
ADM INISTRATIVE CONDITIONAL USE PERM IT
Sections:
17.420.010
Purpose and applicability.
17.420.020
Administrative conditional use permit procedure.
17.420.030 Previous use approval.
17.420.035
Third party review.
17.420.040 Decision criteria
Administrative conditional use permit.
17.420.050
Revision ofadministrative conditional use permit.
17.420.060 ( Repealed)
17.420.070 ( Repealed)
17.420.080
Transfer ofownership.
17.420.090 Land use permit binder required.
17.420.100 Effect.
17.420.010 Purpose and applicability.
The purpose of this chapter is toset forth the procedure and decision criteria for administrative
conditional use permits. An administrative conditional use permit is a mechanismby which the
county may place special conditions on the use or development of property toensure that new
development is compatible with surrounding properties and achieves the intent of the
Comprehensive Plan. This chapter applies toeach application for an administrative conditional
use and touses formerly permittedafter site plan review.
Ord. 367(2006) 110 (part), 2006)
17.420.020 Administrative conditional use permit procedure.
A.
The department may approve, approve with conditions, or deny an administrative
conditional use permit through a Type I f process as set forth in Title 21 ofthis code.
B.
Applications for an administrative conditional use permit shall contain the information
required by the submittal requirements checklist established by the department as set forth in
Section21. 04.045.
C.
Whenan application issubmitted together with another project permit application, the
administrative conditional use permit shall be processed as set forth in Section21. 04.035.
D.
Upon a determinationof a complete application, the director shall have fourteen calendar
days to notify the applicant whether the application shall be reviewed administratively or by the
hearing examiner at a scheduled publichearing. A public hearingwill be required when a
component ofdevelopment located withina commercial zone involvesthe conversionof
previously undeveloped landwhich abuts a residential zone. Further, the director may refer any
proposal under this section tothe hearing examinerfor review and decision.
Ord. 367(2006) 110 (part), 2006)
17.420.030 Previous use approval.
Where, prior to December 11, 2006, approval was grantedfor establishing or conducting a
particular use on a particular site through a site plan review process, such previous reviewand
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use approvals are by this section declaredtobe continued asan administrative conditional use
permit.
Ord. 367(2006) 110 (part), 2006)
17.420.035 Third party review.
The director may require a third party reviewfroma technical expert toprovide information
necessary tosupport an administrative decision. The expert will be chosenfroma list of
prequalified experts prepared and kept current by an annual solicitation by the department. The
applicant shall select the expert froma list ofthree names selected by the director fromthe
larger pre - qualified list. The expert will be contracted tothe county and report their findingsto
the director and the applicant. The cost of such report will be the responsibility ofthe applicant.
Ord. 415 (2008) 186, 2008)
17.420.040 Decisioncriteria Administrative conditional use permits.
A.
The department may approve, approve with conditions, or deny an administrative
conditional use permit. Approval or approval with conditions may be granted only whenall the
following criteria are met:
1.
The proposal is consistent with the Comprehensive Plan;
2.
The proposal complieswith applicable requirements for the use set forth in this code;
3.
The proposal is not materially detrimental to existing orfuture uses or property in the
immediate vicinity; and
4.
The proposal is compatible with and incorporates specificfeatures, conditions, or
revisions that ensure it responds appropriately tothe existing character, appearance, .
quality or development, and physical characteristics ofthe subject property and the
immediate vicinity.
B.
The department may impose conditions toensure the approval criteria are met.
C.
Ifthe approval criteria are not met or conditions cannot be imposed toensure compliance
with the approval criteria, the administrative conditional use permit shall be denied.
Ord. 415 (2008) 187, -2008: Ord. 367(2006) 110 (part), 2006)
17.420.050 Revision of administrative conditional use permits.
A.
Revision of an administrativeconditional use permit or of conditions of permit approval is
permitted asfollows:
1.
M inor revisions may be permitted by the department and shall be properly recorded
in the official case file. No revision in points ofvehicular access tothe property shall be
approved without priorwritten concurrence ofthe director of the department of public
works. M inor revisions shall be processed as a Type I application; and
2.
M ajor revisions, including any requestedchange in permit conditions, shall be
processed as a Type II application;
B. M inor and major revisions are definedas follows:
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Chapter 17.420 ADM INISTRATIVECONDITIONALUSEPERM IT Page 3 of4
1.
A "minor" revision means any proposed change whichdoes not involve substantial
alteration ofthe character ofthe plan or previous approval, including increases in gross
floor area of nomore thanten percent; and
2.
A "major" revision means any expansion of the lot area covered by the permit or
approval, or any proposed changewhereby the character of the approved development
will be substantially altered. A major revision existswhenever intensity of use is
substantially increased, performance standards are reduced below those set forth in the
original permit, detrimental impacts onadjacent properties or public rights-of -way are
created or increased, including increases in tripgeneration of morethanten percent, or
the site plan design is substantially altered.
3.
Any increase in vehicle tripgeneration shall be reviewedtodetermine whether the
revision is major or minor. The trafficanalysis shall be filed by the applicant at the same
time asthe request for revision. The trafficanalysis will followTrafficimpact Analysis
guidelines asset forth in Chapter 20.04.
Ord. 367(2006) 110 (part), 2006)
17.420.060 (Repealed)*
Editor' s Note: Former Section 17.420.060, ' Vacation of administrative conditional use permit,"
was repealed
by
5(b) of Ord. 490 (2012). Section 110 ( part) of Ord. 367(2006) and 188 of Ord.
415 (2008) wereformerly codified in this section.
17.420.070 (Repealed)*
Editor' s Note: Former Section 17.420.070, "Revocation of permit," was repealed
by
5(c) of
Ord. 490 (2012). Section 110 (part) of Ord. 367(2006) and
189 of Ord. 415 (2008) were formerly
codified in thissection.
17.420.080 Transfer ofownership.
Anadministrative conditional use permit runs withthe land and compliance with the conditions
of any such permit is the responsibility of the current owner of the property, whether that isthe
original applicant or a successor.
Ord. 367(2006) 110 (part), 2006)
17.420.090 Land use permit binder required.
The recipient of an administrative conditional use permit shall file a land use permit binder on a
formprovided by the department with the county auditor prior toinitiation of any further site
work; issuance of any development/construction permits by the county; or occupancy /use of
the subject property orthe building thereon for theuse /activity authorized, whichever comes
first. The binder shall serve both as an acknowledgment of andagreement toabide by the
terms and conditions of the permit and as a notice to prospective purchasers ofthe existence
of the permit.
Ord. 367(2006) 110 (part), 2006)
17.420.100 Effect.
No building or other permit shall be issued until after the end ofthe period allowed to appeal
the hearing examiner' s decision. An appeal shall automatically stay the issuance ofa building
or other permit until such appeal has been heard and a decision rendered by the board of
county commissioners.
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Chapter 17.420 ADiSTRATIVECONDITIONALUSEPERM IT Page 4 of4
Ord. 415 (2008) 190, 2008)
The Kitsap County Code is current through Ordinance 501
2013),
passed January 14, 2013.
Disdaimer: The Clerk of the Board' s Office has the official
version of the KitsapCounty Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County Website:
http: / / www.kitsapgov.com/
http:// www.kitsapgov.com/)
County
Telephone: ,(360) 337-5777/ ( 800)
825 -4940
Email the county: openllne@co.kitsap.wa. us
mailto: openline@co. kitsap.wa. us)
Code Publishing Company
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eLibrary
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Chapter 17.421 HEARING EXAM INER CONDITIONALUSEPERM IT Page 1 of4
Chapter 17.421
HEARING EXAM INER CONDITIONAL USE PERM IT
Sections:
17.421. 010
Purpose and applicability.
17.421. 020
Hearing examiner conditional use permit procedure.
17.421. 025
Third party review.
17.421. 030 Decisioncriteria Conditional use permit.
17.421. 040
Revision of hearing examiner conditional use permits.
17.421. 050
Vacationof hearing examiner conditional use permit.
17.421. 060 Revocation of permit.
17.421. 070
Transfer ofownership.
17.421. 080 Land use permit binder required.
17.421. 090 Effect.
17.421. 010 Purpose andapplicability.
The purpose of thischapter is toset forth the procedure and decision criteria for conditional
use permits applications. A conditional use permit is the mechanismby which the county may
gather input through an open record hearing and place special conditions onthe use or
development of land. The provisions of this chapter apply to hearing examiner conditional use
permit applications.
Ord. 367(2006) 111 ( part), 2006)
17.421. 020 Hearing examiner conditional use permit procedure.
A.
The hearing examiner may approve, approve with conditions, or deny a hearing examiner
conditional use permit through a Type 111 process as set forth in Title 21 ofthis code.
B.
Applicatioris for a hearing examiner conditional use permit shall containthe information
required by the submittal requirements checklist established by the department as set forth in
Section 21. 04.045.
C.
When an applicationis submitted together with another project permit application, the
hearing examiner conditional use permit shall be processed as set forth in Section21. 04.035.
Ord. 367(2006) 111 ( part), 2006)
17.421. 025 Thirdparty review.
The director may require a third party review froma technical expert toprovide information
necessary to prepare a staff recommendationtothe hearing examiner. The expert will be
chosenfroma list of pre - qualified experts prepared and kept current by an annual solicitation
by the department. The applicant shall select the expert froma list of three names selected by
the director fromthe larger pre - qualified list. The expert will be contracted tothe county and
report their findings tothe director and the applicant. The cost of such report will be the
responsibility of the applicant.
Ord. 415 (2008) 191, 2008)
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Chapter 17.421 HEARING EXAM NER CONDITIONALUSEPERM IT Page 2 of4
17.421. 030 Decision criteria Conditional use permit.
A.
The hearing examiner may approve, approve with conditions, or deny a hearing examiner
conditional use permit. Approval or approval with conditions may be granted only when all the
following criteria are met
1. The proposal is consistent with the Comprehensive Plan;
2.
The proposal complieswith applicable requirements of thistitle;
3.
Theproposal will not be materially detrimental toexisting or future uses or property in
the immediate vicinity; and
4.
The proposal is compatible with and incorporates specificfeatures, conditions, or
revisionsthat ensure it responds appropriately tothe existing character, appearance,
quality or development, and physical characteristics of the subject property and the
immediate vicinity.
B.
As a conditionof approval, the hearing examiner may:
1.
Increase requirements in the standards, criteria, or policiesestablished by this title;
2.
Stipulate the exact locationas a means of minimizing hazards to life, limb, property
damage, erosion, landslides, or traffic;
3.. Require structural features or equipment essential toserve the same purpose set
forth in Chapter 17.382;
4.
Include requirementsto improve compatibility with other uses permitted inthe same
zone protecting themfromnuisance generating features in matters of noise, odors, air
pollution, wastes, vibration, traffic, physical hazards, andsimilar matters. The hearing
examiner may not, in connectionwith action ona conditional use permit, reduce the
requirements specified by this title as pertaining to any use nor otherwise reduce the
requirements of thistitle in matters for which a variance is the remedy provided;
5.
Assurethat the degree of compatibility with the purpose ofthistitle shall be
maintainedwith respect tothe particular use on the particular site andinconsideration of
other existing and potential uses, withinthe general area inwhich the use is proposedto
be located;
6. Recognize and compensate for variations and degree oftechnological processes and
equipment as related tothe factors of noise, smoke, dust, fumes, vibration, odors, and
hazard or public need;
7.
Require the posting of constructionand maintenance bonds or other security
sufficient to secure tothe county the estimated cost of construction and/or installation and
maintenance ofrequired improvements; and
8.
Impose any requirement that will protect the publichealth, safety, and welfare.
C.
Ifthe approval criteria are not met or conditions cannot be imposed toensure compliance
with the approval criteria, the conditional use permit shall be denied.
Ord. 415 (2008) 192, 2008: Ord. 367(2006) 111 ( part), 2006)
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Chapter 17.421 HEARING EXAM INER CONDITIONALUSEPERM IT Page 3 of4
17.421. 040 Revision of hearing examiner conditional use permits.
A.
Revision ofa hearing examiner conditional use permit or conditions of permit approval is
permitted asfollows:
1.
M inor Revisions. M inor revisions may be permitted by the department. No revision in
points of vehicular access tothe property shall be approvedwithout prior written
concurrence ofthe director of the department of publicworks. M inor revisions shall be
processedas a Type I application
2.
M ajor revisions, including any requestedchange in permit conditions, shall be
processed as.a Type 111 application.
B. M inor and major revisions are defined asfollows:
1.
A "minor" revision means any proposed change which does not involve substantial
alteration of the character ofthe prior approval, including dimensional or gross floor area
increases of lessthan ten percent; and
2.
A "major" revision means any expansion ofthe lot area covered by the permit or
approval, or any proposed changewhereby the character ofthe approved development
will be substantially altered. A major revision exists whenever intensity of use is
substantially increased, performance standards are reduced below those set forth in the
original permit, detrimental impacts on adjacent properties or public rights-of -way are
created or substantially increased, including increased trip generationoften percent or
more, or the site plan design is substantially altered, including- dimensional or gross floor
area increases of ten percent or more.
Ord. 367(2006) 111 ( part), 2006)
17.421. 050 Vacationof hearing examiner conditional use permit.
A.
Any conditional use permit issued pursuant tothis chapter may be vacated by the current
landowner upon county approval; provided, that
1.
The use authorized by the permit does not exist and is not actively being pursued; or
2. The use has been terminated and noviolationof the terms and the conditions of the
permit exists.
B. Landowner request for vacation of a conditional use permit shall be conducted as set forth
inTitle 21 ofthis code.
Ord. 415 (2008) 193, 2008: Ord. 367(2006) 111 ( part), 2006)
17.421.060 Revocation of permit.
Any revocationproceeding shall be conducted in accordance with Chapter 17. 525.
Ord. 415 (2008) 194, 2008: Ord. 367(2006) 111 ( part), 2006)
17.421. 070 Transfer of ownership.
A conditional use permit runs with the land and compliance with theconditions ofany such
permit is the responsibility of the current owner ofthe property, whetherthat is the original
applicant ora successor.
Ord. 367(2006) 111 ( part), 2006)
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Chapter 17.421 HEARING EXAM INER COND1'riONALUSEPERM IT Page 4 of4
17.421. 080 Landuse permit binder required.
The recipient of any conditional use permit shall file a land use permit binder on a form
provided by the department with the county auditor priortoany ofthe following: initiation of any
further site work, issuance of any development/construction permits by the county, or
occupancy /use ofthe subject property or buildings thereonforthe use oractivity authorized.
The binder shall serve both as an acknowledgment of and agreement toabide by the terms
and conditions ofthe conditional use permit and as a notice to prospective purchasers of the
existence of the permit
Ord. 367(2006) 111 ( part), 2006)
17.421. 090 Effect.
Nobuilding or other permit shall be issued until after the end ofthe period allowedtoappeal
the hearing examiner' s decision. Anappeal shall automatically stay the issuance of a building
or other permit until such appeal has been heard and a decision rendered by the board of
county commissioners.
Ord. 415 (2008) 195, 2008)
The KitsapCounty Code is current through Ordinance 501
2013),
passed January 14, 2013.
Disdaimer: The Clerk of the Board' s Office has the official
version of the Kitsap County Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County
Website:
http: / /
www.kitsapgov.com/
http://
www. kitsa pgov. com/)
County Telephone: ( 360) 337-5777/ ( 800)
825 -4940
Email the county: openline@co.kitsap.wa. us
mailto:openline@co.kitsap.wa.us)
Code Publishing Company
http: / /www.codepublishing.com/)
eLibrary
http: / /www. codepublishing.com/elibrary.html)
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17/
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17421. htm1 3/ 1/ 2013
Chapter 17.455 INTERPRETATIONS ANDEXCEPTIONS
Page 1 of6
Chapter 17.455
INTERPRETATIONS ANDEXCEPTIONS
Sections:
17.455.010
Director authority tointerpret code provisions and issue
administrative decisions.
17.455.060 -
Existing uses.
17.455.080
Pending long or short subdivisions.
17.455.090
Temporary permits.
17.455.100
Number of dwellings per lot.
17.455.110 Obnoxious things.
17: 455.120
Existing lot aggregationfor tax purposes.
17.455.010 Director authority tointerpret code provisions and issue
administrative decisions.
It shall be the responsibility of the director himself /herself tointerpret ambiguous
and/or conflicting code and apply the provisions of this title, Kitsap County
Countywide Planning Policies, KitsapCounty Comprehensive Plan and
applicable sub-area plans.
A.
The director may initiate an administrative code interpretation without an
applicant request at any time, and the interpretation will be made available
pursuant toTitle 21 by the department with the development code towhich it
applies.
B.
Any person(s) may submit an application for code interpretations fromthe
director and the interpretationwill be made available by the department pursuant
toTitle 21 with the development code towhich it applies.
C.
At the request of the applicant, in writing, the director may also authorize a
variationof uptoten percent ofany numerical standard, except density, when
unusual circumstances cause undue hardshipin the strict application ofthis title;
provided, such a variance shall be approved only when all of the following
conditions and facts exist:
1.
There are special circumstances applicable to the subject property,
including size, shape, topography, location or surroundings, that were not
created by the applicant and do not apply to other property in the same
vicinity or zone;
2.
Such variance is necessary for the preservationand enjoyment of a
substantial property right or use of the applicant possessed by the owners
of other properties in the same
vicinity
or zone;
Chapter 17.455 INTERPRETATIONS ANDEXCEPTIONS Page 2 of6
3.
The authorization of such variance will not be materially detrimental to
the publicwelfare or injuriousto property inthe vicinity or zone in which the
property is located; and
4.
The variance is the minimumnecessary togrant relief tothe applicant.
5. An approvedvariance shall become void in three years if a complete
application has not been received: The director' s response, including
findings for granting the variation, shall be in writing and kept in the
department files.
D.
All code interpretations are binding and may be appealed by any party
through the process pursuant toTitle 21.
E. All code interpretations, hearings examiner decisions on such
interpretations and board reviews shall be a permanent record ofthe department
of community development and included in the Kitsap County Department of
Community Development Policy M anual. Code interpretations shall be made
available tothe publicand. posted on the county website.
Ord. 415 (2008) 213, 2008: Ord. 256(2001) 2,. 2001: Ord. 234(1999) 2
part), 1999: Ord. 216(1998) 4(part), 1998)
17.455.060 Existing uses.
A:
Except as hereinafter specified; any use, building, or structure lawfully
existing at the time ofthe enactment of this title maybe continued, even though
such use, building, or structure may not conformtothe provisions of this title for
the zone in which it is located. A use or structure not conforming tothe zone in
which it is located shall not be altered or enlarged in any manner, unless such
alteration or enlargement would bring the use or structure intogreater conformity
with the uses permitted within, or requirements of, the zone in which it is located.
The hearing examiner shall review and approve requests for alteration or
enlargement of the use or structure through the conditional permit review
procedures as set forth in Chapter 17.420. In no case shall the enlargement of
these uses be allowed beyond the limits of existing contiguously owned parcels
at the time of the passage ofthe amended ordinance.
B.
This section does not apply toany use, building, or structure established in
violation of any zoning ordinance previously in effect.
All uses in existence occurring on a specificparcel of landwhich legally qualified
as a permitted unclassified use under the provisions of any former Kitsap County
zoning ordinance, shall continue as conforming uses after the effective date of
this title, provided, however, in nocase shall
any
use be allowed to expand into
Chapter 17.455 INTERPRETATIONS ANDEXCEPTIONS
Page 3 of6
adjoining or contiguous property without an approved zone change or
conditional use permit, and further, any expansion onthe original parcel shall
comply with the standards contained in the zone within which the use is
permitted.
Ord. 415 (2008) 214, 2008: Ord. 234(1.999) 2 ( part),
1999: Ord. 216(1998)
4(part), 1998)
17.455.080 Pending longor short subdivisions.
Nothing herein shall require any change in the location, plans, construction, size
or designated use of any residential plat, forwhich preliminary official approval
has been granted prior to the adoption of this title.
Ord. 234(1999) 2 ( part), 1999: Ord. 216(1998) 4(part), 1998)
17.455.090 Temporary permits.
The director may approve tempqrary permits, with conditions to mitigate
negative impacts, valid for a period of not more thanone year after issuance, for
temporary structures or useswhich do not conformtothis title.
Upon the expiration of the temporary permit, the applicant shall have thirty days
within which to remove and/or discontinue such temporary use structure.
Upon approval, temporary permits may be issuedfor the following uses or
structures:
A.
Storage of equipment and materials during the building of roads or other
developments;
B.
Temporary storage of structures for the .housing oftools and supplies used
in conjunction with the building of roads or other developments;
C.
Temporary office structures;
D.
Temporary housing /construction living quartersfor personnel such as
watchmen, labor crews, engineering, and management; provided:
1.
The building permit for the primary structure must have been issued;
2.
The temporary dwelling must not be permanently placed on the site;
3.
The temporary dwelling must meet the setback requirements of the
zone in which it is located; and
4.
For the purpose of constructing a. single- family dwelling, temporary
living
quarters (for example, a recreational vehicle)
may
be permitted
only
Chapter 17.455 INTERPRETATIONS ANDEXCEPTIONS Page 4 of6
in conjunction with a stick frame structure: This permit will rernain active as
long as the building permit for the single- farhily dwelling remains active.
E.
Use of equipment essential toand only in conjunctionwith the construction
or building of a road, bridge, ramp, dock, and/orjetty located in proximity tothe
temporary site;_provided, that the applicant shall provide a construction contract
or other evidence of the time period required to completethe project; and
providedfurther, that the following equipment shall be considered essential to
and in conjunction with such construction projects:
1.
Portable asphaltic concrete - mixing plants.
2.
Portable concrete - hatching plants.
3.
Portable rock - crushing plants.
4.
Accessory equipment essential tothe use ofthe aforementioned
plants.
F.
Temporary uses and structures otherwise permitted within the zonewhich
will remain uptoone hundred eighty days on an existing lot or parcel where
compliance with an administrative conditional use permit and landscaping
requirements are impractical.
G.
Temporary uses and structures not specified in any zone classification
subject toapplicable provisions ofthe Kitsap County Code; provided, that such
uses and structures may not be approved by the director for a period greater
than ninety days.
H.
The occupancy of a recreational vehicle (RV) for a period not toexceed
three months subject tothe following conditions:
1. The subject
property
must be located in the Rural Wooded(RW), Rural
Protection(RP), or Rural Residential (RR) zones;
2.
The RV must be occupied by the property owner or family member;
3. The RV must be provided with approved utilities including septicor
sewer (health district approval), water, and electrical power;
4. The location ofthe RV must meet all setbacks required by the
underlying zone;
5.
The director may impose additional conditions as appropriate toensure
that the RV use is compatible with the
surrounding
properties;
Chapter 17.455
INTERPRETATIONS AND
EXCEPTIONS
Page 5 of6
6.
The minimumRV size shall be twohundred square feet; and
7.
A permit will be required each time the RV is placed on a parcel. Ifthe
RV is placed on the same parcel each year the applicationfee will be half
ofthe initial fee.
I.
Placement of a storage container on a property developed with single - family
dwelling or propertieswith an active building permit for construction of a
residential or commercial building is subject tothe following conditions:
1.
The container must meet all applicable setbacks for the zone; and
2.
The storage container may not be placed on site for more than ninety
days; however, in instances where a building permit for a single- family
dwelling or commercial development is active, the container may remain on
site until thirty days after the permit expires or receives final
inspection/certificate of occupancy.
Ord. 415 (2008) 215, 2008: Ord. 234(1999) 2 ( part), 1999: Ord. 216(1998)
4(part), 1998)
17.455.100 Number of dwellings per lot.
Except as provided for elsewhere in this title, there shall be nomore than one
dwelling unit per lot.
Ord. 415 (2008) 216, 2008: Ord. 234(1999) 2 ( part), 1999: Ord. 216(1998)
4( part), 1998)
17.455.110 Obnoxious things.
In all zones, except as provided for elsewhere in this title, no use shall produce
noise, smoke, dirt, dust, odor, vibration, heat; glare, toxic gas or radiationwhich
is materially deleterious to surrounding people, properties or uses. Lighting is to
be directed away fromadjoining properties. Not more than onefoot candle of
illumination may leave the property boundaries.
Ord. 234(1999) 2 ( part), 1999: Ord. 216(1998) 4(part), 1998)
17.455.120 Existing lot aggregation for tax purposes.
For the purposes of this title, parcelswhich have been aggregated by the county
for tax purposes shall be considered separate legally existing lots of record.
Ord. 415 (2008) 217, 2008: Ord. 234(1999) 2 ( part), 1999: Ord. 216(1998)
4(part), 1998)
Chapter 17. 455 INTERPRETATIONS ANDEXCEPTIONS Page 6 of6
This page ofthe Kitsap County Code is current through
Ordinance 461 ( 2010), passed September 13, 2010.
Disclaimer: The Clerk of the Board' s Office has the official
version of the KitsapCounty Code, Users should contact the
Clerk of the Board' s Office for ordinances passed subsequeht to
the ordinance cited above.
County
Website:
http: / /
www,kitsapgov,com/
County
Telephone: ( 360) 337-4870
Code
Publishing Company
Chapter 17. 460 NONCONFORM ING USES ANDSTRUCTURES Page 1 of3
Chapter 17.460
NONCONFORM ING USES ANDSTRUCTURES
Sections:
17.460.010 Purpose.
17.460.020
Nonconforming uses of land.
17.460.030
Nonconforming structures.
17.460_
040
Nonconforming uses of structures.
17.460.010 Purpose.
Unless specifically stated elsewhere in this title, a use lawfully occupying a structure or
site on the effective date ofthis title or ofamendments theretowhich does not conformto
the use regulations for the zone in which it is located, is deemed to be a non- conforming
use and may be continued, subject tothe regulations hereinafter.
Ord. 281 ( 2002) 11, 2002: Ord. 216(1998) 4(part), 1998)
17.460.020 Nonconforming uses of land.
A.
The director may grant an application for a change of use if, on the basis ofthe
application and the evidence submitted, the director makes the following findings:
1.
That the proposed use is classified in a more restrictive category than existing
or preexisting uses by the zone regulations of this title. The classifications of a
nonconforming use shall be determined on the basis of the zone in which it is first
permitted; provided, that a conditional use shall be a more restrictive category than
a permitted use in the same category.
2.
That the proposed use will not more adversely affect the character ofthe zone
in which it is proposed to be located than the existing or preexisting use.
3.
That the change of use will not result in the enlargement of the space occupied
by a nonconforming use. Except that, a nonconforming use ofa building may be
extended throughout those parts of a buildingwhich were designed or arranged to
such use prior to the date when such use of the building became nonconforming,
provided that nostructural alteration, except those required by the law, are made.
The decision ofthe director may be appealed tothe hearing examiner.
B.
Unless specifically stated elsewhere in this title, if a nonconforming use not involving
a structure has been changed to a conforming use,-or if the nonconforming use ceases
for a period ofsix months or more, said use shall be considered abandoned, and said
premises shall thereafter be used only for uses permitted under the provisions in the
zone inwhich it is located.
C.
A nonconforming use not involving a structure, or one involving a structure (other
than a sign) having an assessed value of less than two hundred dollars, shall be
discontinued withintwoyearsfromthe date of passage of this title.
Il . 1 fr) i 1 '-, 1 TT .. 1 ^ l .7/ n 1.. . 1 1 n1, 1 n!nn, n
Chapter 17. 460 NONCONFORM ING USES ANDSTRUCTURES Page 2 of3
D.
A use which is nonconforming with respect to provisions for screening shall provide
screening within five years fromthe date of passage of thistitle.
E.
If an existing nonconforming use or portion thereof, not housed or enclosed within a
structure, occupies a portion of a lot or parcel of land on the effective date hereof, the
area of such use may not be expanded, nor shall the use or any part thereof, be moved
toany other portionof the property not theretofore regularly and actually occupied for
such use; provided, that this shall not apply where such increase in area is for the
purpose of increasing an off- street parking or loading facility tothe area specified in this
title for the activity carried on in the property; and provided further that this shall not be
construed as permitting unenclosed commercial activities where otherwise prohibited by
this title.
Ord. 281 ( 2002) 12, 2002: Ord. 216( 1998) 4(part), 1998)
17.460.030 Nonconforming structures.
A.
A structure nonconforming tothe dimensional standards ofthis title may not be
altered or enlarged in any manner unless such alteration or enlargement would bring the
structure intoconformity with the requirements of the zone in which it is located; provided
structural change may be permitted when required to make the structure safe for
occupancy or use, provided structural enlargements may be allowed in conformity with
the setback requirements of the zone in which it is located, and provided structural
enlargements may be allowed ifthey would not further violate setback requirements, and
provided further, that a nonconforming mobile home may be replaced notwithstanding the
setback and density provisions of this title, so long as the structure does not further
encroach upon any required yard.
B.
A nonconforming structure may be maintained with ordinary care.
C.
A mobile home and/or single- family residence located on a legal nonconforming lot,
may be replaced if destroyed.
Ord. 216( 1998) 4(part), 1998)
17.460.040 Nonconforming uses ofstructures.
A. Continuation of Nonconforming Use. Any nonconforming use of a structure which
was lawfully established and which has been lawfully, actively and continually
maintained, may be continued subject tothe limitations of this section. In all proceedings
other than criminal, the owner, occupant or user shall have the burden to showthat the
use or structure was lawfully established.
B. Change of Nonconforming Use. A nonconforming use may be changed toanother
non- conforming use so long as no structural alterations are neededtothe structure in
which the use is located; provided, any such change of use shall be to a use of equal or
greater conformity tothose permitted in the zone.
C.
No Expansion of Nonconforming Use. A nonconforming use shall not be enlarged or
expanded; provided, the structure containing the nonconforming use may be structurally
alteredto adapt tonew technologies or equipment.
Chapter 17.460 NONCONFORM ING USES ANDSTRUCTURES Page 3 of3
D.
Expansion of Nonconforming Structures. A structure which is nonconforming by
reason of substandard lot dimensions, setback requirements, lot area or a building height
in excess of that which is permitted by this title but which does not contain non-
conforming uses, may be enlarged or expanded solong as the enlargement or expansion
conformstothe requirements of this title; provided, a structure may be expanded to the
building line but it may never be expanded toencroach upon a street or be withinfive feet
of a property line other than a street property line.
E.
Destruction of Nonconforming Use or Structure. If any nonconforming use or
structure is destroyed by any cause, it shall be allowed to be reconstructed or reinstated
as a non- conforming use in a similar size and appearance within a period of one year
fromthe date the use or structure was destroyed.
F.
Discontinuance of Nonconforming Use or Structures. Any nonconforming use or
structure for which the use or occupancy is discontinuedfor a period of one year shall not
thereafter be allowed as a nonconforming use or structure.
Ord. 216( 1998) 4(part), 1998)
This page of the KitsapCounty Code is current through
Ordinance 461 ( 2010),
passed September 13, 2010.
Disclaimer: The Clerk of the Board' s Office has the official
version of the Kitsap County Code: Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance cited above.
County
Website:
http: / /www.kiisapgov.com/
County Telephone: ( 360) 337-4870
Code
Publishing Company
o
0
0
Chapter 17.530 ENFORCEM ENT
Page 1 of2
Chapter 17.530
ENFORCEM ENT
Sections:
17.530.010 Authorization.
17.530.020 Penalties.
17.530.030 Nuisance.
17.530.040 Permit or license in violation.
17.530.050 Written assurance of discontinuance.
17.530.010 Authorization.
The director is authorized to enforce this title, and to designate county employees as
authorized representatives ofthe department to investigate suspectedviolations of this title,
andtoissue orderstocorrect violations and notices of infraction.
Ord. 216( 1998) 4(part), 1998)
17.530.020 Penalties.
The violation ofany provision of thistitle shall constitute a Class I civil infraction. Each violation
shall constitute a separate infractionfor each and every day or portionthereof during which the
violation is committed, continued or permitted. Infractions shall be processed in accordance
with the provisions ofthe adopted Kitsap County Civil Enforcement Ordinance (Chapter 2. 116
ofthis code).
Ord. 216(1998) 4(part), 1998)
17.530.030 Nuisance.
Any use, building or structure in violationof this title is unlawful, and a publicnuisance.
Notwithstanding any other remedy or means of enforcement ofthe provisions ofthistitle,
including but not limitedtoKitsapCounty Code Chapter 9.56 pertainingtothe abatement of
publicnuisances, the prosecuting attomey, any person residing on property abutting the
property with the proscribed condition, and the owner or owners of land abuttingthe land with
the proscribed condition may each bring an action for a mandatory injunctiontoabatethe
nuisance in accordance with the law. The costsof such a suit shall be taxed against the person
found tohave violated this title.
Ord. 292 (2002) 11, 2002: Ord. 216(1998) 4( part), 1998)
17.530.040 Permit or license in violation.
Any permit or license issued by the county which was not in conformity with provisions of the
Zoning Ordinancethen in effect is null and void.
Ord. 216(1998) 4(part), 1998)
17.530.050 Written assurance ofdiscontinuance.
The director may accept a writtenassurance ofdiscontinuance of any act in violation ofthis
titlefromany person whohas engaged in such act. Failure to comply with the assurance of
discontinuance shall be a further violation ofthis title.
Ord. 216(1998) 4( part), 1998)
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Chapter 17.530 ENFORCEM ENT
Page 2 of2
The KitsapCounty Code iscurrent through Ordinance 501
2013), passedJanuary 14, 2013.
Disclaimer: The Clerk of the Board' s Office has the official
version of the Kitsap County Code. Users should contact the
Clerk of the Board' s Office for ordinances passed subsequent to
the ordinance dted above.
County
Website:
http: / /www.kitsapgov.com/
http:// www.kitsapgov.com/)
County Telephone: ( 360) 337-5777/ ( 800)
825 -4940
Email the county: openline@co. kitsap.wa. us
mailto:openline@co.kitsap.wa. us)
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DECLARATION OFSERVICE
I hereby certify that I served the foregoing APPELLANT' S M OTION FOR LEAVE TO
FILE AM ENDED OPENING BRIEF and AM ENDED BRIEF OF APPELLANT on the
following:
Neil R. Wachter David S. M ann
KitsapCounty
Prosecutor' s Office Gendler & M ann, LLP
Civil Division
1424 Fourth Avenue, Suite 715
614 Division Street, M S -35A Seattle, WA 98101 -2217
Port Orchard, WA 98366
Of Attorneys for Amicus Curiae CK Safe &
OfAttorneys for Respondent
KitsapCounty)
Quiet, LLC)
by the followingmethod or methods:
X
by mailing a full, true and correct copy thereof in a sealed, first- class, postage pre -paid
envelope, addressed to the last -known address of the
party(
ies) as shown above, and
deposited with the United States Postal Service at Portland, Oregon, on the date set forth
below.
by causing a full, true and correct copy thereof to be hand- delivered to the party(ies) at the
last -knownaddress listedabove on the date set forth below.
by sending a full, true and correct copy thereof via overnight courier in a sealed, prepaid
envelope, addressed to the last -known address ofthe party(ies) as shown above, on the date
set forth below.
by faxing a full, true and correct copy thereof to the party(ies) at the fax number shown
above, which is the last -known fax number ofthe
party(
ies), on the date set forth below. The
receiving fax machine was operatingat the time ofservice and the transmission was property
completed.
by emailing a full, true and correct copy thereof to the party(ies) at the email addresses
shown above, which are the last -known email addresses ofthe
party(
ies), on the date set forth
below.
DATED: M arch 8, 2013
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE
STATEOFWASHINGTON THAT THEABOVEIS TRUEANDCORRECT.
CHENOWETH LAW GROUP, PC
co co
D
rt
u
Angie corn, Legal Assistant rr
Chenoweth Law Group, P.C.
510 SW Fifth Ave., Fifth Floor -
4
Portland, OR 97204
503) 221- 7958